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TMI Blog2010 (8) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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the Commissioner (Appeals) has inherent ‘power of remand’ - The options before the Tribunal are that the matter can be withdrawn from the original authority and entrusted to the Commissioner (Appeals) for fresh decision or, as final fact finding authority, the Tribunal itself can take up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) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) accepted the submission that the refund claim has been filed on 17-11-2005 and, therefore, within the time-limit prescribed. However, he remanded the matter to the original authority to verify the claim from the angle of unjust enrichment. 4. Learned SDR challenges the order of the Commissioner (Appeals) on two grounds. First of all, he submits that the claim should have been treated as filed only on 15-9-2006 when all the relevant documents have been submitted. Further, the Commissioner (Appeals) should not have remanded the matter to the original authority to examine the claim of unjust enrichment as he has no powers to remand as Section 35A(3) has been amended with effect from 11-5-2001 omitting the power of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Central Excise, Noida - 2007 (210) E.L.T. 188 (S.C.) 7. I have carefully considered the submission from both sides and perused the records. It is not in dispute that the respondent have committed a clerical mistake in paying a higher amount of cess on 12-2-2005 (in fact, now, they also made submission that they are not required to pay any cess at all in respect of goods cleared prior to 9-7-2004). I do not agree with the submissions made by the department that the claim for refund made on 17-11-2005 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 on 17-11-2005. Therefore, I do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) could have taken up the role of an adjudicator and called for the documents, examined the issue and passed a final order. He has chosen to send it for de novo consideration by the original authority. Now, 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. I deem it appropriate to entrust this work to the original authority himself. In view of the above, I set aside the order of the Commissioner (Appeals) remanding the matter to the original authority for considering the aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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