2017 (9) TMI 884

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....l, AR- for the appellant                                         Shri. Rajive Agnihotri, Shri. Ishant Bhardwaj, Advocates- for the respondent ORDER The Revenue is in appeal against the impugn....

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....) 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. 3.  The Ld. AR submits that the facts of the case are different from Geojit BNP Vs. CCECST reported in 2015 (39) STR 195 (Ker.) and in the case of Swastik Sanitarywares (Supra), it was the case o....

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....al 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 of Section 11B of the Central Excise Act. In the above case, the Apex Court elaborately classified claim for refund into three groups or categories, vis-`-vis, (i) unconstitutional levy, ....

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....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 attracted. This Court is also of the view that levy is not in accordance with the provisions of the Service Tax and therefore, such payment cannot be taken as a payment made relatable to ....