2010 (8) TMI 460 - AT - Central Excise

Refund Claim - Limitation - The respondent have committed a clerical mistake in paying a higher amount of cess - The submissions made by the department that the claim for refund was not complete merely because some original documents were subsequently submitted by the party on the direction of the department even though, copies have been submitted along with the claim earlier - Therefore, do not find any infirmity in the order of the Commissioner (Appeals) in holding that the refund claim was within the time-limit prescribed - Appeal allowed against of department - Power of remand - Issue raised by the department is that Commissioner (Appeals) has no powers to remand after Section 35A(3) was specifically amended by deleting the word power of remand - The Hon ble High Court of Gujarat after taking note of the amendment in May, 2001, has held that the Commissioner (Appeals) has inherent power of remand - The options before the Tribunal are that the matter can be withdrawn from the original authority and entrusted to the Commissioner (Appeals) for fresh decision or, as final fact finding authority, the Tribunal itself can take up the issue after getting the evidence to be produced from both sides - It appropriate to entrust this work to the original authority himself. Hence, set aside the order of the Commissioner (Appeals) remanding the matter to the original authority for considering the aspect of unjust enrichment and at the same time, remand the matter to the original authority for fresh consideration of the above aspect on the same terms as the Commissioner (Appeals) has directed in his impugned order.

Summary

Issues:
1. Time-barred refund claim.
2. Power of remand by Commissioner (Appeals).

Time-barred refund claim:
The case involved a dispute regarding an excess payment of Education Cess by the respondent, leading to a refund claim. The respondent paid Rs. 1,75,000 as cess on consignments, mistakenly calculating the amount payable as Rs. 2,25,376. The claim was filed on 17-11-2005, with additional documents provided later. The original authority rejected the claim as time-barred, but the Commissioner (Appeals) accepted it, directing verification of unjust enrichment. The department challenged this, arguing that the claim was complete only on 15-9-2006 and that the Commissioner (Appeals) lacked the power to remand post-amendment. The respondent contended that the claim was filed within the time limit, and the Commissioner (Appeals) had the power to remand, citing relevant case law. The Tribunal found the claim timely filed, dismissing the department's objections.

Power of remand by Commissioner (Appeals):
The department contested the Commissioner (Appeals)'s remand order, citing an amendment omitting the 'power of remand' under Section 35A(3). The Tribunal noted conflicting decisions by the Supreme Court and the High Court on the Commissioner (Appeals)'s remand authority. Despite this, the Tribunal appreciated the reason for remand and decided to entrust the matter to the original authority for fresh consideration of unjust enrichment. The Tribunal rejected the department's appeal on the remand issue and dismissed the cross objection supporting the Commissioner (Appeals)'s order, deeming it infructuous. The Tribunal upheld the Commissioner (Appeals)'s decision on remand, emphasizing the need for a fresh examination by the original authority.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, CHENNAI addresses the issues of a time-barred refund claim and the power of remand by the Commissioner (Appeals), providing a comprehensive overview of the legal arguments and the Tribunal's decision on each issue.