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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 ..... und in respect of two invoices. - Decided partly in favour of Revenue. - Appeal No. ST/89780/14 & ST/89781/14 - - - Dated:- 2-7-2015 - Ramesh Nair, Member (J) For the Appellant : Shri R K Das, Dy. Commissioner ( AR ) For the Respondent : Shri S S Gupta, Consultant ORDER Per Ramesh Nair This appeal is directed against Order-in-Appeal NO. 604-605/PD/14 dtd. 17/6/2014 passed by the Commissioner of Central Excise Service Tax, Mumbai -I, wherein Ld. Commissioner (Appeals) set aside the Original order and allowed the appeal with consequential relief. 2. The issue involved in the present case is refund claim of accumulated Cenvat credit against export of Services in terms of Rule 5 of CCR, 2004 and Notification No.5/2006 CE (N.T.) dated 14/3/2006. The refund was initially rejected by the Original authority being time bar as it was filed beyond the period of one year, the remittance against export of service was received in Indian Rupees and certain services i.e. rent a cab service, outdoor catering service are not input service therefore refund of service tax of the said services are not admissible. Aggrieved by the said order in original, appellant filed app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the respondent, therefore refund of service tax paid on such services are not admissible. 4. Shri. S.S. Gupta, Ld. Consultant appearing for the respondent submits that as regard time bar in respect of invoices No. 8/2009 dated 31/10/2009 and 11/2010 dated 30/11/2009 it is covered under refund for period Oct 2009 to march 2010. The foreign remittance as per FIRC received on 4/11/2009 and 10/11/2009 respectively. Only against these two invoices refund claim was filed beyond the period of one year from the date of remittance. Except these two invoices, in respect of other invoices, refund was filed within a period of one year from the date of remittance received by the respondent. Therefore at the most, refund related to these invoices only can be denied. As regard the ground of appeal of the Revenue that receipt of payment against export in Indian Rupees, he submits that Ld. Commissioner in his findings categorically stated that FIRC were issued in respect of amount received in Indian Rupees and in the FIRC it was clearly mentioned that these are convertible foreign exchange. It is also important to note that Indian rupees was routed through foreign Bank, i.e. Wachovia Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reproduced below: 5. I have carefully considered the submissions made by both the sides. It is not in dispute that the remittance towards the payment of service was received in Indian rupees. However, though the payment is received in Indian rupees but the bank has issued Foreign Inward Remittance Certificate . Clause 3A.6(i) of the Exchange Control Manual is reproduced below: 3A.6 (i) Authorised dealers should issue certificates in form BCI against receipt of inward remittances or realisation of foreign exchange on security paper if the amount exceeds ₹ 15,000/- in value, bearing distinctive serial numbers and reference numbers. In case the amount of inward remittance or realisation of foreign exchange is upto ₹ 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent outside India against payment for export from India, or against any other payment, shall be as mentioned below: Group Manner of receipt of foreign exchange (1) member countries in the Asian Clearing Union (except Nepal) namely, Bangladesh. Islamic Republic of Iran, Myanmar, Pakistan and Sri Lanka a) payment for all eligible current transactions by debit to the Asian Clearing Union dollar account in India of a bank of the member country in which the other party to the transaction is resident or by credit to the Asian Clearing Union dollar account of the authorised dealer maintained 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter - the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated 11.3.1986, declining to approve the agreements of the appellant with M/s Sedgwick offshore Resources Ltd. London for the purposes of section 80-0 of the Income-tax Act, are improper and illegal. We declare so. we direct the respondent to process the agreements in the light of the principles laid down by us herein above. The appeal is allowed. There shall be no order as to costs. 9. 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 forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input services. 12. In view of my above discussion, I am of the considered view that the impugned order deserves to be modified inasmuch as the impugned order in respect of ₹ 1,64,081/- is upheld and the order rejecting refund of an amount of ₹ 10,98,077/- is set aside. From above decisions of this Tribunal, it is clear that payment received in Indian Rupees for which FIRC issued by the bank and payment is routed through foreign bank qualifies the condition of payment 'convertible foreign exchange', therefore on this ground refund cannot be rejected. As regard Cenvat Credit in respect of services namely, rent a cab, outdoor caterer's service, I fully agree with the findings of the Ld. Commissioner based on board circular dated 19/1/2010. Moreover on these two services there are number of judgment of this Tribunal including larger bench judgment in case of Commissioner of Central Excise, Mumbai-V vs. GTC Industries Ltd. [2008 (12) S.T.R. 468 (Tri-LB)] where credit was held admissible. 6.1 In view of my above discussion, I find that the Commissioner (Appeals) order is just and proper except in respect of two invoices No. 10/2009 dated 31/10/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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