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2023 (12) TMI 111 - AT - Central ExciseRefund claims for interest - denial on the ground that as per the adjudicating authority interest was not a pre-deposit under Section 35 F as amended w.e.f. 06.08.2014 - HELD THAT:- Appellant had deposited an amount of Rs.1,00,00,000/- as directed by the Hon’ble High Court vide order dated 08.07.2014 - Admittedly, in this case the appeal was filed on 27.08.2014 all though it was in respect of the Order-in-Original dated 23.05.2013, no appeal was filed before the appellate authority i.e. CESTAT. The amount was deposited prior to the date of commencement of Finance (No 2) Act, 2014 as per the direction of Hon’ble High Court, this appeal was filed on 27.08.2014, i.e after the date of commencement of Finance Act, 2014. The Tribunal has considered this appeal filed after 27.08.2014 in terms of the amended provisions of Section 35F by treating the amount deposited as per direction of Hon’ble High Court as a pre-deposit as per Section 35F as amended w.e.f. 06.08.2014. From the proviso to the amendment made in Section 35 F, it is quite evident that the date of filing the appeal is the date for determining the applicability of the amended section and not the date of deposit nor the date of order appealed against is having any relevance. Tribunal has in its order dated 12.12.2014, considered the amount deposited by the appellant as per the directions of the Hon’ble High Court, as deposit made under the provisions of amended Section 35F, for purpose of consideration of appeal. Tribunal has considered the amount deposited as per the direction of Hon’ble High Court after completion of adjudication proceedings to be in compliance of the conditions of mandatory pre-deposit. It is important to note that amount was deposited as per the direction of Hon’ble High Court and was not an deposit made in terms of Section 35 F prior to the commencement of the Finance (No 2) Act, 2014. Accordingly the proviso to Section 35FF would not be applicable in the facts of the present case. Similar has been stated by the Board in its Circular No 984/08/2014 dated 16.09.2014, where it was held that Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 only when the appeal is filed, the date of filing of appeal shall be deemed to be the date of deposit made in terms of the said sections. Impugned order holding contrary to the above cannot be sustained and the same is set aside - appeal allowed.
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