TMI Blog2015 (7) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice extended by the petitioner to the Muscat Bank SAOG. Thus, the writ petition is maintainable 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 [2009 (8) TMI 150 - KARNATAKA HIGH COURT] and by the Madras High Court in Natraj and Venkat Associates v. Asst.Commr. Of S.T., Chennai-II [2009 (10) TMI 36 - MADRAS HIGH COURT] - refund allowed - Decided in favour of assessee. - WP (C) No. 18126 of 2015 (M) - - - Dated:- 6-7-2015 - A. Muhamed Mustaque, J. For the Appellant : Sri J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the petitioner is ineligible for refund of the amount claimed. 4. Section 11B of the Central Excise Act is quoted below for convenient reference: 11B. Claim for refund of duty and interest, if any, paid on such duty.-- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A as the applicant m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Division Bench of the Karnataka High Court in Commissioner of Central Excise (Appeals), Bangalore v. KVR Construction [2012 (26) S.T.R 195 (Kar.)], would argue that when service tax is paid mistakenly, Section 11B of the Central Excise Act has no application. It is apposite to refer the dictum of the above judgment at para.23, which reads as follows: 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter it has no colour of tax for the purpose of levy by the Department. 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. This Court is also of the view that levy is not in accordance with the provisions of the service tax and therefore, such payment cannot be taken as a payment made relatable to Section 11B of the Central Excise Act. 9. The learned Standing Counsel for the Department would further argue that the petitioner has an alternative remedy a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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