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2015 (7) TMI 635 - KERALA HIGH COURT

2015 (7) TMI 635 - KERALA HIGH COURT - 2015 (39) S.T.R. 706 (Ker.) , [2015] 85 VST 76 (Ker) - Refund claim - no service tax is leviable for the service - 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. - Held that:- The question of alternative remedy would arise if service tax is otherwise leviable under the Central Excise Act. Herein, in this case, there is .....

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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 Jose Jacob, Adv. For the Respondent : Sri Ranjith Jacob Koshy, SC And sri Thomas Mathew Nellimoottil, SC JUDGMENT The petitioner is a company engaged in providing retail financial servic .....

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ax 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 under challenge before this Court. 3. The claim was rejected citing Section 11B(1) of the Central Excise Act, 1944 .....

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y, 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 refer .....

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levant 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, whi .....

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for the petitioner, relying on the judgment 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 i .....

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authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside 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 .....

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anding the law. The petitioner assumed that the transaction for which he has paid tax, is covered under the law. The law does not cover such transaction for payment of service tax. Therefore, it is not on account of any mistake of law but mistake of fact the service tax was paid. In that view of the matter 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 validit .....

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