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TMI Blog2021 (10) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... unt. 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. There are no justification in the reasons adopted for rejection of the refund claim by the lower authorities and hence the impugned order is not sustainable in the eye of law - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 20381 of 2021 - Final Order No.20794/2021 - Dated:- 21-10-2021 - MR. P DINESHA, JUDICIAL MEMBER Shri Badrinath, Chartered Accountant for the Appellant Shri K.B.Nanaiah, Authorized Representative for the Respondent ORDER By this appeal, the appellant has challenged the Order-in-Appeal passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galore Vs KVR Construction-2012 (26) STR 195 (Kar.) has observed as under: 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 service tax, the amount of ₹ 1,23,96,948/- paid by petitioner under mistaken notion, would not be a duty or service tax payable in law. Therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to have refunded the said excess amount to the appellant Company either upon their application or on an application made by the importer. In the case of Mafatlal Industries Ltd. (supra), it has been held that in order to claim excess duty paid, which falls outside the purview of the said Act of 1962, the limitation provided under Section 27 is not applicable. Hence, the appellant-company is certainly entitled for refund of duty. ..... 17. In the light of the law laid down by the Hon ble Supreme Court and the other High Courts keeping in view the peculiar facts and circumstances of the case, it is crystal clear that when the customs duty is paid in excess, the department is liable to refund the same and the limitation provided un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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