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2018 (3) TMI 999 - AT - Service TaxRefund of unutilized CENVAT credit - export of services - N/N. 5/2006-CE (NT) dated 14.3.2006 - denial on the ground that the condition that the payment for export service is to be received by the service provider in convertible foreign exchange was not satisfied - Held that - one of the conditions for allowing refund is that the proceeds for export of service should have been received in convertible foreign currency. In respect of the present refund claims, the proceeds for export of service were not received directly in foreign exchange but the same was routed by the Foreign Service receiver through M/s. Wells Forgo NA, USA through HSBC Bank. Ultimately the amount was received by the appellant in rupees. The issue has been decided in favour of the appellant by this Tribunal in the case of BBC World Services India Pvt. Ltd. vs. Commissioner of Service Tax, Delhi 2018 (2) TMI 369 - CESTAT NEW DELHI , where it was held that there is no 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. Appeal allowed- decided in favor of appellant.
Issues Involved:
1. Change of name in the cause title. 2. Eligibility for refund claims under Rule 5 of CENVAT Credit Rules, 2004. 3. Receipt of payment for export services in convertible foreign exchange. Issue-wise Detailed Analysis: 1. Change of Name in the Cause Title: The appellant filed miscellaneous applications requesting a change of name in the cause title from "Novell Software Development (India) Pvt. Ltd." to "Micro Focus Software India Pvt. Ltd.". After reviewing the petitions, the Tribunal allowed the change of name. 2. Eligibility for Refund Claims under Rule 5 of CENVAT Credit Rules, 2004: The appellant filed nine appeals covering various periods from January 2009 to June 2011, seeking refunds for unutilized CENVAT credit of service tax availed in respect of services used in providing output services. These refund claims were made under Notification No.5/2006-CE (NT) dated 14.3.2006. The lower authorities rejected the refund claims on the grounds that the payment for export services was not received in convertible foreign exchange. The appellant contested this rejection, leading to the present appeals. 3. Receipt of Payment for Export Services in Convertible Foreign Exchange: The Tribunal noted that one of the conditions for allowing the refund is that the proceeds for export of service should be received in convertible foreign currency. In this case, the proceeds were routed through M/s. Wells Forgo NA, USA via HSBC Bank and ultimately received in rupees by the appellant. The Tribunal referenced previous decisions, including the case of BBC World Services India Pvt. Ltd. vs. Commissioner of Service Tax, Delhi, which established that payments received in Indian rupees through foreign banks could be considered as received in convertible foreign exchange. The Tribunal cited the Foreign Exchange Management Act (FEMA) and related regulations, which support the view that payments received in rupees from foreign bank accounts are deemed to be convertible foreign exchange. The Tribunal further referenced the Supreme Court judgment in J.B. Boda and Company, which held that income received in India in convertible foreign exchange through proper banking channels is lawful and permissible. The Tribunal concluded that the appellant's receipt of payment in Indian rupees through foreign banking channels met the requirement of convertible foreign exchange. Consequently, the Tribunal found no merit in the lower authorities' rejection of the refund claims on this basis. Conclusion: The Tribunal allowed the appeals, setting aside the impugned orders and granting consequential relief to the appellant. The decision was pronounced and dictated in open court on 14/02/2018.
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