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TMI Blog2015 (10) TMI 2411X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not received export proceeds in convertible foreign currency but received the same in Indian rupees only. The department also observed that the appellant have availed Cenvat credit on Clearing services (supply of plants), Car Hire Charges, Professional charges for assisting in MIS reporting requirement, service tax registration, IEC code, which according to the department were not used for providing output service. Further, the department observed that though the appellant have registered themselves with the department for "management Consultant services" they have exported "Banking and other Financial Services", for which they have not obtained service tax registration. The revenue issued show cause notice proposing rejection of refund claim on above allegation, the same was culminated into adjudication order wherein adjudicating authority rejected the refund claim. Aggrieved by the said order the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal therefore appellant is before me. 3. Ms. Rinky Jassuja, Ld. Chartered Accountant appearing for the appellant submits that refund was rejected mainly on the ground that various remittance was received i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rica. FIRC in respect of foreign remittance was issued by the bank. In FIRC this clearly stated that "payment has not been received in non convertible rupees or under any special trade or payment agreement". With this it clearly shows that whatsoever payment was received, it is convertible foreign exchange. This very issue is squarely covered by this Tribunal judgment in case of Sun-Area Real Estate Pvt Ltd (supra) wherein it was held as under: 5. I have carefully considered the submissions made by both the sides. It is not in dispute that the remittance towards the payment of service was received in Indian rupees. However, though the payment is received in Indian rupees but the bank has issued "Foreign Inward Remittance Certificate". Clause 3A.6(i) of the Exchange Control Manual is reproduced below: "3A.6 (i) Authorised dealers should issue certificates in form BCI against receipt of inward remittances or realisation of foreign exchange on security paper if the amount exceeds Rs. 15,000/- in value, bearing distinctive serial numbers and reference numbers. In case the amount of inward remittance or realisation of foreign exchange is upto Rs. 15,000/-certificates in form BCI wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. FEMA 14/2000-RB dated 03/05/2000 issued by Reserve Bank of India. Regulation No.3 of the said Notification is reproduced below: 3. Manner of Receipt in Foreign Exchange:- (1) Every receipt in foreign exchange by an authorised dealer, whether by way of remittance from a foreign country (other than Nepal and Bhutan) or by way of reimbursement from his branch or correspondent outside India against payment for export from India, or against any other payment, shall be as mentioned below: Group Manner of receipt of foreign exchange (1) member countries in the Asian Clearing Union (except Nepal) namely, Bangladesh. Islamic Republic of Iran, Myanmar, Pakistan and Sri Lanka a) payment for all eligible current transactions by debit to the Asian Clearing Union dollar account in India of a bank of the member country in which the other party to the transaction is resident or by credit to the Asian Clearing Union dollar account of the authorised dealer maintained with the correspondent bank in the member country; and b) payment in any permitted currency in all other cases (2) all countries other than those mentioned in (1). a) payment in rupees from the account of a bank situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to uphold the view of the respondent that the income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter - the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated 11.3.1986, declining to approve the agreements of the appellant with M/s Sedgwick offshore Resources Ltd. London for the purposes of section 80-0 of the Income-tax Act, are improper and illegal. We declare so. we direct the respondent to process the agreements in the light of the principles laid down by us herein above. The appeal is allowed. There shall be no order as to costs." 9. From the above judgment it is observed that out of the total payment to be made by the insurance broker in India to the foreign insurer was reduced to the extent of his brokerage and remaining amount was remitted to foreign insurer in the foreign exchange. The issue was whether the brokerage in Indian rupees retained by the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me are admissible input services. 12. In view of my above discussion, I am of the considered view that the impugned order deserves to be modified inasmuch as the impugned order in respect of Rs. 1,64,081/- is upheld and the order rejecting refund of an amount of Rs. 10,98,077/- is set aside. 13. The appeal of the appellant is allowed in the above terms. From the above judgment it can be seen that the facts of the present case is absolutely identical to the case in the above judgment, therefore the refund should not be rejected only on the ground that the foreign remittance received in Indian Rupees. AS regard the dispute raised in respect of admissibility of the Cenvat credit on certain services such as Clearing services (supply of plants), Car Hire Charges, Professional charges for assisting in MIS reporting requirement, service tax registration, IEC code, I find that since the appellant is service provider and their services are exported all these services appears to have been used by the appellant and therefore it cannot be said that the said services are not used in or in relation to providing out put services, therefore the said services are input services and Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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