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TMI Blog2015 (7) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... pproached this Court challenging an order rejecting their claim for refund of the amount paid mistakenly as service tax. 2. The petitioner, for the payment received from the Bank of Muscat SAOG for the service rendered, remitted service tax amounting to Rs. 1,72,339/- for the period from April 2012 to March 2013. They made an application for refund of service tax for the reason that they need not pay the same, since the recipient of such service was located outside India and the payment received was in convertible foreign exchange which qualifies as export of service. The application was submitted on 23/2/2015. The said application was rejected by Ext.P7 order stating that it was filed beyond one year from the relevant date. This order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that arises is whether the petitioner is entitled for refund of the amount claimed after one year from the relevant date apart from the question relating to alternate remedy available to the petitioner. 6. It was found in the impugned order that the payment received by the petitioner is not chargeable to tax. The reason given is as follows: "Section 66B envisages taxation of services rendered in the taxable territory. Whether a particular service is rendered in the taxable territory or not is a matter to be determined in terms of Place of Provision Rules, 2012. As per rule 3 of the said Rules, which is the relevant Rule applicable in the instant case, the place of provision of service is the location of the service recipient. In the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside the purview of Section 11B of the Act." 8. The learned counsel for the Department, relying on the judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. and others v. Union of India and others [(1997) 5 SCC 536] would argue that even if the payment was made under a mistake, the refund can only be processed in terms of Section 11B of the Central Excise Act. In the above case, the Apex Court elaborately classified claim for refund into three groups or categories, vis-a-vis, (i) unconstitutional levy, (ii) illegal levy and (iii) mistake of law, and held that the remedies involved in all the three categories are the remedies provided under the Excise and Customs Act. None of the above categories would attract to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable when the amount is arbitrarily withheld without any justification under law as the refund claimed by the petitioner is not relatable to Section 11B of the Central Excise Act. Similar view was also taken by the Karnataka High Court in K.V.R. Constructions v. Commissioner of Central Excise (Appeals) and another [(2010) 28 VST 190 (Karn)] and by the Madras High Court in Natraj and Venkat Associates v. Asst.Commr. Of S.T., Chennai-II [2010 (249) E.L.T.337 (Mad.)] . 11. In that view of the matter, the writ petition is allowed. There shall be a direction to the second respondent to sanction, refund claimed by the petitioner based on the request made by him within two months from the date of receipt of a copy of this judgment. No co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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