2010 (8) TMI 460

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....,75,000/- as Education Cess on 12-2-2005 relating to consignments lying in stock at depots as on 9-7-2004 and sold on or after 9-7-2004. The cess amount came to Rs. 22,537.60/-. It is the case of the respondent that, by mistake, they calculated the cess payable as Rs. 2,25,376/- and paid an amount of Rs. 1,75,000/- and, therefore, there is an excess payment of Rs. 1,42,709/-. They filed the refund claim on 17-11-2005. Some particulars/documents were furnished on 15-9-2006 as requested by the department. The original authority rejected the claim as time-barred holding that the Service refund claim with all relevant documents were filed only on 15-9-2006 and not on 17-11-2005. On appeal by the party, the Commissioner (Appeals) accepted the su....

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....hat the Commissioner (Appeals) has the 'power of remand' as held by the Hon'ble High Court in the case of Commissioner v. Medico Labs - 2004 (173) E.L.T. 117 (Guj.) which has been passed after taking into account the amendment carried out to Section 35B(3) of the Central Excise Act. He also submits that the cross objection is basically in support of the order of the Commissioner (Appeals) and that they are not claiming any relief other than what has already been granted by Commissioner (Appeals) regarding deletion of 'power of remand' applicable to Commissioner (Appeals). 6. In his rejoinder learned SDR particularly draws my attention to the observation of the Hon'ble Supreme Court in the case of MIL India Ltd. v. Commissioner of Ce....

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.... dated 22-3-2000. The decision of the Hon'ble Supreme Court was to the effect that Commissioner (Appeals) continues to exercise the power of adjudicating authority in the case of remand while hearing the appeal cannot be treated as having decided the availability or otherwise of 'power of remand' of Commissioner (Appeals) after the amendment carried out in May, 2001. On the other hand, 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'. 9. Without going into the above controversy, I find the reason for which the Commissioner (Appeals) has sent the matter to original authority deserves to be appreciated. No doubt, that the Commissi....