[2015-TIOL-1602-HC-KERALA-ST] M/s Geojit BNP Paribas Financial Services Ltd vs. Commissioner of Central Excise, Customs and Service Tax, Deputy Commissioner of Central Excise

Facts
The Appellant wrongly paid service tax on services qualified as export of services and hence claimed a refund. The claim was rejected since it was filed beyond one year from the relevant date as provided u/s. 11B of the Central Excise Act. Hence, a writ petition was filed.

Held:
The Hon’ble High Court relying on the decision of the Karnataka High Court in the case of KVR Construction [2012 (26) STR 195(Kar)] noted that once there is no compulsion or duty cast to pay service tax, there was no authority for the department to retain such amount and the refund is not relatable to section 11B of the Central Excise Act, 1994. Further, the decision of the Apex Court in the case of Mafatlal Industries Ltd. [(1997) 5 SCC 536] holding that refund can only be processed in terms of section 11B was also distinguished by holding that the mistake in the present case is on account of fact and not on account of law. Section 11B is attracted only when the levy has a 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. Thus, refund is granted and writ petition is allowed.

Note: Readers may also note a similar decision in the case of M/s. Vasudha Agencies vs. Commissioner of Service Tax- Mumbai-I [2015-TIOL-1470-CESTAT-MUM] and the digest of C.K.P. Mandal vs. Commissioner of Service Tax, Mumbai- II [2015 (38) STR 73 (Tri.-Mumbai) which was reported in the BCAJ-June 2015 issue and the decision of Commissioner of Central Excise and Service Tax, Bhavnagar vs. M/s. Madhvi Procon Pvt. Ltd. [2015-TIOL-87-CESTAT-AHM] also referred in the BCAJ-February 2015 issue.