TMI Blog2018 (2) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained by participated bank in nostro mechanism in UK. The said debit of foreign exchange by the UK bank and consequent credit in Indian rupee in Indian bank as part of nostro transaction is reported to RBI and necessarily forms part of foreign exchange earning in India. Refund allowed - appeal allowed - decided in favor of appellant. - ST/MISC/20169/2017 - - - Dated:- 14-2-2018 - Hon'ble Mr. S. S. Garg, Judicial Member And Mr. V. Padmanabhan, Technical Member Mr. Sahilendra Sukhlecha, CA For the Appellant Dr. Ezhilmathi, AR For the Respondent ORDER Per : V. Padmanabhan The present set of miscellaneous applications has been filed by the appellant for change of name in the cause title from Novell Software Development (India) Pvt. Ltd. to Micro Focus Software India Pvt. Ltd . After going through the miscellaneous petitions, the same is allowed and the cause title is ordered to be changed. 2. With concurrence of both sides, the appeals are taken up for a decision on merit. 3. The appellant has filed 9 appeals covering various periods from January 2009 to June 2011. The appellants are registered for providing taxable service under the category o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence numbers. In case the amount of inward remittance or realisation of foreign exchange is upto Rs. 15,000/- certificates in form BCI with serial numbers and reference numbers may be issued on the letter-head of the authorised dealer (with their Logo printed on it). Since inward remittances received for opening of or credit of Non- Resident (External) accounts/FCNR accounts can be repatriated freely, authorised dealers should not issue certificates against such remittances. 6. From the above provision it is clear that Foreign Inward Remittance Certificate (FIRC) is issued only in respect of foreign exchange. In the present case, FIRCs were issued and there is a specific certification that the payment has not been received in non-convertible rupees, which establishes that the payment received and mentioned in the FIRCs are other than non-convertible foreign exchange. In other words, the payment is in convertible foreign exchange. I have gone through the Notification No.FEMA 9/2000-RB, dated 3rd May, 2000, the relevant para No.4 of the said Notification is reproduced below : 4. Manner of Repatriation. - (1) On realisation of foreign exchange due, a person shall repatria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 in any country other than a member country of Asian Clearing Union or Nepal or Bhutan; or (b) payment in any permitted currency (2) In respect of an export from India, payment shall be received in a currency appropriate to the place of final destination as mentioned in the declaration form irrespective of the country of residence of the buyer. 7. From the above regulation and serial No. (2) of the Table, it is very clear that the payment in rupees from the account of a bank situated in any country (other than a member country of Asian Clearing Union or Nepal or Bhutan) is a manner of receipt of foreign exchange. In the present case, as evident that the Indian rupees was received through the account of Deutsche Bank which is situated in foreign country. Therefore, in terms of Regulation 3 made under Section 47 of the Foreign Exchange Management Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Insurance broker shall be treated as foreign exchange or otherwise. The Hon ble Supreme Court has held that the said amount of brokerage retained by the Indian insurance broker from the total amount due to the foreign insurer shall be treated as foreign exchange. In view of the above judgment, I am of the view that when a foreign bank is maintaining Indian rupees in their account obviously, such Indian rupees was obtained in lieu of foreign exchange. For example, if any payment is made from India to any foreign country, it is to be made in foreign exchange and thus there is a outflow of foreign exchange but if the payment is made in Indian rupees, there is a saving of foreign exchange and if the said Indian rupees is received in India, the same is in lieu of foreign exchange which was saved at the time of repatriation of Indian rupees to foreign country. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sterling account maintained by participated bank in nostro mechanism in UK. The said debit of foreign exchange by the UK bank and consequent credit in Indian rupee in Indian bank as part of nostro transaction is reported to RBI and necessarily forms part of foreign exchange earning in India. In other words, the amount has not reached India from UK in Indian rupees. 11. In view of the detailed analysis, as above and decided cases in similar set of facts, we find no merit in the findings by the lower authority to the effect that foreign exchange has not been received in convertible foreign currency for export of services by the appellant. 12. On the second issue, a plain reading of the statutory definition for programme producer service makes it clear that such programme producer should produce programmes on behalf of another person. In the present case, the appellants did not produce programmes for another person. There is no second person at the time of appellant producing the programme which is apparently for self. Thereafter, such programmes were given to other broadcasters on a consideration. In our opinion, such transactions are not covered by programme producer ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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