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TMI Blog2015 (12) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... vices are not admissible. Aggrieved by the said order in original, appellant filed appeal before the Commissioner (Appeals) who allowed the appeal on the ground that refund claim was filed within one year from the realization of the proceeds against export services. As regard the foreign remittance in Indian Rupees, Ld. Commissioner (Appeals) has found that against remittance, FIRC were submitted by the appellant through which remittance was done by PMI Inc. USA, service receiver, the remittance bank is Wachovia Bank N.A. USA HDFC bank wherein proceedings have been credited confirmed that amount received by the appellant from the M/s. PMI USA in convertible foreign exchange. As regard the admissibility of the Cenvat credit and refund thereof in respect of certain services i.e. rent a cab service, outdoor catering service. Ld. Commissioner has found that in terms of Circular No. 120/01/2010 ST dated 19/1/2010 it specifically provides that essential services i.e. rent a cab, outdoor caterer's services used by BPO/Call centre for provisions of their output services would qualify as input services and will be eligible for taking credit as well as refunds. In view of the said circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to note that Indian rupees was routed through foreign Bank, i.e. Wachovia Bank, N.A., USA. In this fact it cannot be said that even though Indian Rupees was received in foreign bank the payment is not in convertible foreign exchange. As regard the Cenvat credit in respect of certain services, i.e. rent a cab service, outdoor catering service, he submits that Ld. Commissioner (Appeals) has given findings that Cenvat Credit in respect of these services are clearly admissible in term of Board Circular dated 19/1/2010. He further submits that in various Tribunal judgments, services of rent a cab and outdoor catering services have been held as admissible input services, except in case part of amount of outdoor catering service charges recovered from the employee. In the present case there is no recovery of any amount from the employee therefore credit on both services are clearly admissible. 5. I have carefully considered the submissions made by both sides and perused the record. 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es." 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective 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 thru 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, 1999, in the present case the foreign remittance in Indian rupees through Deutsche Bank is the receipt of payment in convertible foreign 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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. On this logic under the Foreign Exchange Management Act also it provided that if the payment in India rupees is received in India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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