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TMI Blog2023 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Circular No. 984/08/2014-CX dated 16.09.2014 was to be granted to him from the date of payment till the date of grant of refund. The adjudicating authority in this regard has stated that since the amount was deposited on 30.08.2013 for which the amended provisions of Section 35FF of the Act, which came into force on 06.08.2014, were not applicable, and as the refund of pre- deposit was made within three months the appellant was not entitled to interest. In this regard, I find that the amended Section 35FF of the Act (substituted we.f. 06.08.2014) reads as under. SECTION 35FF. Interest on delayed refund of amount deposited under section 35F.-Where an amount deposited by the appellant under section 35F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five per cent. and not exceeding thirty-six per cent. per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such amount from the date of payment of the amount till, the date of refund of such amount: Provided that the amount deposited under section 35F, prior to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Section 35F vide challan no.63905041503201650101 dated 15.03.2016 5 E/MISC/70060 /2018 E/55066/2014 M/s Shivam Engineers & Fabricators 01/COMMR/ST/GZB/2014-15 dated 30.06.2014 19,60,000/- 7.5% of assessed liability as a pre-deposit requirement. The party had debited the said amount from CENVAT Account in the monthly return of October' 2015. Total (Rs.) 1,32,96,300/- 2.3 Original Authority allowed the refund claims along with interest in terms of Section 35 FF of the Central Excise Act in respect of all other refund claims except for interest on amount of Rs.1,00,00,000/- which as per the adjudicating authority was not a pre-deposit under Section 35 F as amended w.e.f. 06.08.2014. 2.4 Appellant challenged the rejection of refund claims for interest before Commissioner (Appeals), who vide the impugned order held as stated above in para-1. 3.1 I have heard Ms Rupali Singh Advocate for the appellant and Shri Sandeep Pandey Authorized Representative for the Revenue. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 The issue in the present case is in very narrow compass. The Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 4.5 As noted by the Original Authority, this amount has been considered as pre-deposit in terms of the provisions of Section 35F of Central Excise Act as amended with effect from 06.08.2014 by the CESTAT vide its order dated 12.12.2014. Finally, appeal has been adjudged in favour of the appellant. 4.6 Once it is admitted that the Tribunal has vide its order dated 12.12.2014 considered this amount as pre-deposit for consideration of the appeal the same cannot be treated as any other deposit except deposit under Section 35F as amended. Section 35F and Section 35FF of the Central Excise Act are reproduced bellow:- SECTION 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s date, requirement of pre-deposit was to be satisfied before the same could have been considered by the Tribunal. 4.8 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the date on which appeal is filed, to the extent of 7.5% or10%, subject to the limit of Rs 10 crores, can be considered to be deposit made towards fulfilment of stipulation under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35 F of the Central Excise Act, 1944 or Section 129E of the Customs Act,1962, shall not be treated as deposit under the said sections. 3.2 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. 3.3 In case of any short-payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed by the appellant is liable for rejection." 4.10 Impugned order holding co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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