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TMI Blog2017 (9) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... stakenly and filed refund claim. As service tax was not payable by the respondent, therefore, the amount paid by the respondent is not an amount of service tax, therefore, Section 11B of the Act are not invokable - refund allowed - appeal dismissed - decided against Revenue. - ST/60272/2017 - Final Order No. 61482/2017 - Dated:- 4-8-2017 - Mr. Ashok Jindal, Member (Judicial) Shri. Satyapal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year of the payment of service tax but denied the refund which is beyond one year as per Section 11B of the Act. Aggrieved from the said order, the respondent filed appeal before the ld. Commissioner (A) who relied on the decision of Swastik Sanitarywares Vs. UOI reported in 2013 (296) ELT 321 (Guj.) and allowed the refund claim. Aggreived from the said order, the Revenue is in appeal before me. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Geojit BNP (Supra), wherein the Hon ble High Court observed as under: 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 = 1997 (89) E.L.T. 247 (S.C.)] would argue that even if the payment was made under a mistake, the refund can only be processed in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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