TMI Blog2019 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... truction, [2012 (7) TMI 22 - KARNATAKA HIGH COURT], the Division Bench of this Court has categorically observed that when once there was no compulsion or duty cast to pay the service tax, the amount paid by petitioner under mistaken notion, would not be a duty or service tax payable in law. The petitioner has paid tax amount on a mistaken notion and the maintenance of books of MESCOM is not a taxable service, the department cannot get itself unjust enriched by relying on Section 11B of the Act. If the services are not coming within the ambit of taxable service as contemplated under the Act 1994, Section 11B of the Act is not applicable. Hence, respondent No.2 is directed to refund the tax amount to the petitioner. Petition disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the petitioner is not liable to pay the service tax in respect of MESCOM ledger maintenance services. The appeal filed by the Revenue was dismissed as withdrawn. The petitioner sought for refund of ₹ 2,31,139/- with interest which was paid by her under mistake of fact. The said request has been rejected by respondent No.2. Hence, this writ petition. 3. Learned counsel for the petitioner would submit that respondent No.2 rejected the claim of the petitioner mainly placing reliance on Section 11B of the Central Excise Act, 1994 ( Act for short) read with Section 83 of the Finance Act, 1994, which is not applicable to the facts of the present case. Respondent No.2 ought to have allowed the refund claimed by the petitioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawal of the appeal before the Customs, Excise and Service Tax Appellate Tribunal, Bengaluru by the Revenue. It is the case of the Revenue that the claim of refund made by the petitioner has to be considered only under Section 11B of the Act. The refund claimed not being made within the time prescribed under Section 11B of the Act, the petitioner is not entitled to the relief sought for. This view of the Revenue is considered in the light of the judgment of KVR Construction, supra, whereby the Division Bench of this Court has observed thus: 21. In the case of Commissioner of Central Excise, Bangalore v. Motorola India Pvt. Ltd. the Division Bench of this Court considered similar issue. It was a case where excess amount was paid over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act. 7. The settled principle of law is mere payment of tax made by the respondent under the mistaken notion would neither validate the nature of payment nor the nature of transaction. The controversy in the present case involves around the applicability of Section 11B of the Act to the facts of the present case. In the KVR Construction, supra, the Division Bench of this Court has categorically observed that when once there was no compulsion or duty cast to pay the service tax, the amount paid by petitioner under mistaken notion, would not be a duty or service tax payable in law. Once it is not payable in law there was no authority for the department to retain such amount which would otherwise be outside the purview of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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