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2010 (8) TMI 460 - AT - Central ExciseRefund 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the Commissioner (Appeals) has inherent ‘power of remand’ - The options before the Tribunal are that the matter can be withdrawn from the original authority and entrusted to the Commissioner (Appeals) for fresh decision or, as final fact finding authority, the Tribunal itself can take up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.
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