TMI Blog2022 (3) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... such service tax not liable to be paid by the assessee, it would not give the Department the authority to retain the amount paid by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion. In view of the decision of the Hon ble Jurisdictional High Court of Karnataka, the action of the adjudicating authority in sanctioning refund is held to be in order. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 20259 of 2021 - Final Order No. 20096/2022 - Dated:- 22-3-2022 - SHRI P. DINESHA, JUDICIAL MEMBER Shri G. Natarajan, Advocate for the Appellant Shri P. Gopakumar, Additional Commissioner (AR) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2012 ST for the period 05.09.2012 to 05.09.2013 and also paid back the amount of excess service tax collected by them from their service recipient. Accordingly the applicant is eligible for refund of service tax paid Notification No. 30/2012 ST dated 06.09.2004 consequent to the CESTAT Final Order No. 21328/2017 dated 03.08.2017 .. Aggrieved by the above order of the adjudicating authority, the Revenue filed an appeal before the Commissioner of Central Tax, Central Excise and Customs, Kakkanad Division, Kerala wherein the following grounds of appeal was urged: . a. The Order-in-Original records no findings as regards the matter dealt with in the Order-in-Appeal passed by the Hon ble CESTAT. Paragraph 8 of the order speaks of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have been refunded to the assessee as per the order of the original authority, the Revenue would have to recover the amounts from the assessee, which cannot be treated as tax due and hence, the Hon ble Court has held that though the question of law was answered in favour of the Revenue but the Revenue was incapable of recovery of the amounts refunded as tax due. Thus, the Hon ble Court put a restraint on the Revenue from recovering the amounts refunded which decision is squarely applicable to the facts in the present case as well. Going by the above ratio in the case of Uniroyal Marine (supra), it is held that even if the Revenue is correct, but still, the recovery cannot be made. 3. In the case of M/s. Way2wealth Brokers Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under a mistaken notion. This judgment has been confirmed by the Hon ble Apex Court dismissing the appeal filed by the Revenue. Having regard to the facts and circumstances of the case, this judgment is squarely applicable to the case on hand. In view of the above decision of the Hon ble Jurisdictional High Court of Karnataka, the action of the adjudicating authority in sanctioning refund is held to be in order. 4. In view of the above, I am of the view that the Commissioner (Appeals) has erred in his impugned order by setting aside the sanction of refund which is contrary to the decision in M/s. Way2wealth (supra) and which is also not recoverable, as held in Uniroyal Marine (supra) and therefore, the impugned order is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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