9911796707
TMI Blog2017 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ported. Assistant Commissioner of Service Tax rejected the refund claims on the ground that the export realization is shown in Indian Currency. Aggrieved by the said order, appellant filed appeal before the Commissioner (A), who also upheld the same, hence the present two appeals. 3. Heard both the parties and perused the material on record. 4. Learned consultant for the appellant submitted that the impugned order rejecting the refund only on the ground that payments have been received in Indian rupee which does not satisfy the requirement of Rule 3(2)(b) of Export of Service Rules, 2005 and therefore, the appellants are not entitled to refund. He further submitted that impugned order is contrary to the binding judicial precedent on the same issue. He further submitted that the appellants have realised the entire proceeds in the Indian rupees as permitted by Reserve Bank of India. Further, the appellants have submitted the Certificate of Foreign Inward Remittances issued by their banker. He also submitted that in view of the exchange rate fluctuations, the appellants have instructed their bankers to convert the foreign exchange realisation into Indian rupees and credit their acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign exchange. Learned counsel for the appellant also submitted that in appellants own case this Tribunal has allowed 11 appeals of the appellant on the identical issue vide Final Order No.20964 20974/2017 dated 27.6.2017. 6.1 In the case of CST vs. PMI Organization Centre Pvt. Ltd. cited supra, the Tribunal in Para 6 has observed as under: "6. From the records, I find that it is apparent that except two invoices No. 10/2009 dated 31/10/2009 and 11/2009 dated 31/11/2009 in all other cases refund were filed within one year from the date of receipt of foreign remittance towards services provided, therefore I find that only refund claim on these two invoices are not admissible and in rest of cases refund is well within time limit prescribed, therefore remaining refund claim is admissible. As regard payment received in Indian Rupees, I am of the view that merely because the payment is received in Indian Rupees it cannot be said that payment against export has not been received in Convertible Foreign exchange, as provided in the Export of Services Rules, 2005. Since the Indian Rupees is received from the recipient of the services through their foreign bank i.e. Wachovia Bank N.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) On realisation of foreign exchange due, a person shall repatriate the same to India, namely bring into, or receive in, India and- (a) sell it to an authorised person in India in exchange for rupees; or (b) retain or hold it in account with an authorised dealer in India to the extent specified by the Reserve Bank; or (c) use it for discharge of a debt or liability denominated in foreign exchange to the extent and in the manner specified by the Reserve Bank. (2) A person shall be deemed to have repatriated the realised foreign exchange to India when he receives in India payment in rupees from the account of a bank or an exchange house situated in any country outside India, maintained with an authorised dealer." From the sub-para (2) of para 4 above it is very clear that, when a person receives in India payment in rupees from the account of a bank situated in any country outside India maintained with an authorised dealer, the payment in rupees shall be deemed to have repatriated the realized foreign exchange to India. In the present case, the payment in Indian rupees was received from foreign country through Deutsche Bank. Therefore, the said Indian rupee is nothing but foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign exchange. 8. I have gone through the hon'ble Supreme Court's judgment in the case of J.B. Boda a nd Company (supra) wherein it was held that: "12. The facts brought out in this case, are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurer, and that the remittance that the amount due to the foreign re-insurers as also the brokerage due to the appellant and the balance due to the foreign reinsurer is remitted (and expressed so) in dollars. It is common ground that the entire transaction effected through the media of the Reserve Bank of India is expressed in foreign exchange and in effect the retention of the fee due to the appellant Is dollars for the services rendered. This, according to us, is receipt of income in convertible foreign exchange. It seems to us that a "two way traffic", is unnecessary. To insist on a formal remittance to the foreign reinsures first and thereafter to receive the commission from the foreign reinsurer, will be an empty formality and a meaningless ritual, on the facts of this case. On a perusal of the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through banking channel it is deemed to be convertible foreign exchange. 10. As regard the judgments relied upon by the learned counsel, I have gone through the same. However, same are need not be discussed, in view of my above discussion and the statutory provisions of the Foreign Exchange Management Act and hon'ble Supreme Court's judgment, I am of the considered view that even though the appellant received the payment in Indian rupees but the same is deemed to be convertible foreign exchange and accordingly the condition as provided under Rule 3(ii) of Export of Service Rules, 2005 stand complied with. The appellant filed the appeal in respect of the total amount of Rs. 12,62,158/-. However, from the Order-in-Appeal, I find that an amount of Rs. 1,64,081/- was held as admissible. Therefore, the appellant should not be aggrieved with this part of the amount. 11. On the other issues of admissibility of input service credit in respect of security services and air travel services, first of all, this issue of admissibility as input service was not raised in the show cause notice. Therefore, denial of refund of Rs. 7,747/- and Rs. 1,051/-respectively is not correct. Secondly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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