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2020 (1) TMI 324 - AT - Service TaxRefund of service tax - failure to comply with the provisions of section 11-B of the Central Excise Act, 1944, as made applicable to service tax by section 83 of the Finance Act, 1994 - rejection for the reason that it was not made before the expiry of one year from the relevant date - whether the limitation provided for under section 11-B of the Excise Act for claiming refund before the expiry of one year from the relevant date, would be applicable or not to the application filed by the Appellant? HELD THAT:- The Delhi High Court in M/S. NATIONAL INSTITUTE OF PUBLIC FINANCE & POLICY VERSUS C.S.T., DELHI [2017 (11) TMI 1482 - CESTAT NEW DELHI] clearly held that if service tax was not leviable, but it was paid by mistake, the amount had to be refunded - The Kerala High Court in M/S GEOJIT BNP PARIBAS FINANCIAL SERVICES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS AND SERVICE TAX, DEPUTY COMMISSIONER OF CENTRAL EXCISE SERVICE TAX DIVISION [2015 (7) TMI 635 - KERALA HIGH COURT] also pointed out that the distinguishing feature for attracting the provisions under section 11B is that the levy should have the colour of validity when it was paid and only consequent upon interpretation of law or adjudication, the levy is liable to be ordered as refund. When payment was effected, if it has no colour of legality, section 11B is not attracted. Thus, when service tax is not leviable, but it is deposited mistakenly by the Appellant, the provisions of section 11-B of the Excise Act relating to limitation would not be applicable - In the instant case, the Commissioner (Appeals) has rejected the refund claim of the Appellant only for the reason that it was made beyond a period of one year from the date of payment of duty. Appeal allowed - decided in favor of appellant.
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