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TMI Blog2018 (11) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... s successor, i.e. realised by its successor at Italy - from the case of National Engg. Industries Ltd. Versus Commr. of C.EX., Jaipur [2007 (12) TMI 170 - CESTAT, NEW DELHI], it is clear that the receipt of export proceeds in Indian currency, in lieu of Foreign exchange, even makes it sufficient to be considerd as receipt of foreign currency, in India. Article 265 clearly rules that there cannot be collection of tax without authority to Law, so also, the revenue should justifiably prove its authority to reject refund and retain, when clearly the amount did not belong to it, but to another. Refund allowed - appeal allowed - decided in favor of appellant. - Appeal No. ST/41536/2017 - Final Order No. 42418/2018 - Dated:- 31-8-2018 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 499/08 063 527 11 OF IDBI BANK LTD., 37, C P RAMASWAMY ROAD, CHENNAI 600 018 TAMIL NADU INDIA HAVING SWIFT CODE: DRESDEFFXXX. According to Bank Statement submitted by assessee, it appears that the amount instead of crediting to the Account of SELLA SYNERGY INDIA PVT. LTD., 1st Floor ELNET Software City, TS140 Rajiv Gandhi Salai Taramani, Chennai has been credited to SELLA Servizi Bancari S.C.P.A. Hence it appears that the transaction cannot be considered as export of Service. 1.3 In response to the above, the appellant filed its explanation vide letter dt. 16.12.2015, seriously resisting the proposal of rejection by the adjudicating authority, inter alia contending that it had transferred its software service business to M/s. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Service Tax Rules, 1994 read with item (b) of Explanation 3 of clause (44) of Section 65B of the Act; that the amount had not been received in convertible foreign currency by the appellant; and that therefore for the above reasons, the transaction could not be considered as an export of service under Rule 6A(e) and (f) of Service Tax Rules, 1994 read with Item (b) of Explanation (3) to clause 44 of Section 65B of the Act. From the records, I do not find any documentary evidence in support of these ( appears / seen ) assumptions. Aggrieved by the said rejection, the appellant filed an appeal before the Commissioner of Service Tax (Appeals-I), Chennai and the Commissioner (Appeals) vide impugned order dt. 31.03.2017 has upheld the rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the denial of refund by the Revenue is on the allegation that the export proceeds were received by the appellant s successor, i.e. realised by its successor at Italy. The findings of adjudicating authority which are at para 15, is extracted herein below :- ..-15. It is observed in the present case that the amount is credited to DRESDNER BANK AG JURGEN-POINO-PLAZA 1, D-60301 FRANKFURT MAIN EUR A/C NO.499/08 063 527 11 OF IDBI BANK LTD., 37, CP RAMASWAMY ROAD, CHENNAI-600 018, TAMIL NADU INDIA HAVING SWIFT CODE:DRESDEFFXXX. According to the Bank Statement submitted by the assessee, it appears that the amount instead of crediting to the Account of SELLA SYNERGY INDIA PVT. LTD., 1st Floor, ELNET Software City, TS 140, Rajiv Gandhi Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of Rule 3(2) of the said Rules is to earn convertible foreign exchange and then benefit of exemption of Service tax would be extended to the assessee. In the present case, it is revealed from the Purchase Order that payment would be made to the appellant by convertible foreign exchange from USA company through Indian Railways, who paid in Indian Rupees as the same amount of foreign exchange was not released by them. It is well settled that machinery of a statue should be interpreted so as to promote the object and purpose of the scheme. Further, once the legislative intention is properly understood, then the case should be decided in fulfilment with the legislative intention. In the present case, it is revealed from contract that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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