TMI Blog2017 (9) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... not treatable as export on the solitary ground that the consideration was not received in foreign currency; is legally sustainable? - Held that: - Admittedly, the receipt in foreign currency is a condition prevalent in the law at all times, in order to consider the transaction as an export transaction - Since the appellant contends that the figure adopted is merely a provision for accounting purpose, and does not represent the actual receipt; and also that it continues to be shown as receivable in the final accounts clearly affects the levy. The impugned order admittedly failed to address the appellant s contentions on this aspect inter alia; and this leads to the inference that the principles of natural justice were indeed violated. The en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, an appeal was preferred before the First Appellate Authority on the grounds of limitation as well as on the merits. The First Appellate Authority did not accepts the contentions raised and the upheld the demands confirmed. 5. I find that the arguments of the Ld. Counsel appearing for the appellant is necessarily on the point of limitation. My attention was drawn to a letter dated 23.07.2010, addressed by the appellant to the Assistant Commissioner of Service Tax; that the said letter clearly establishes that appellant was rendering Technical Knowhow agreement with a Nigerian Firm and revenue was aware of it, and hence the show cause notice issued for the demand of the tax for the financial year 2008 is hit by limitation. On merits, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding establishment of gross violations. The factual matrix therefore supports the demand under Section 73(1) routed through the proviso to Sect 73(4A) even though not specifically invoked; which in turn is not fatal to the demand proposals per se, as held in several pronouncements. The appellant s contentions on limitation therefore fail and are rejected. It can be seen from the records, that letter dated 23.07.2010 is only informing the department as to receipt of Technical Knowhow for the financial year 2008-2009 and is absolutely silent on the services rendered during the period in question. It is also on record that the appellant being a service provider, should have indicated the said services rendered by them in the hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come is booked as received. Under the law in force at that point of time, therefore, no liability can be fastened on the appellant. For the period beyond 01.04.2011, the Point of Taxation of Service Rules, 2011, applies. There is no material to show that the liability in this case was fastened on the basis of the earliest of the following events: i) Date on which service is provided or to be provided; ii) Date of invoice; and iii) Date of payment. Therefore, the very foundation of the demand is unclear, and legally untenable. 8. Admittedly, the receipt in foreign currency is a condition prevalent in the law at all times, in order to consider the transaction as an export transaction. The fact that the service is provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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