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TMI Blog2019 (8) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... led the conditions of receiving consideration in convertible foreign currency - HELD THAT:- When the amount is adjusted in the bank account and remitted to the service provider in India through bank account in Indian currency, the same is to be considered as paid in convertible foreign currency - the condition provided in Rule 6A is fulfilled and the services are exported - refund allowed. Unjust enrichment - HELD THAT:- It is settled law that taxes cannot be exported and, therefore, since the services are provided outside India the doctrine of Unjust Enrichment cannot be applied to services exported. In the present case, the services having been exported outside India, the discussions made by the authority below observing that the appellants have included the element of service tax in the debit note and, therefore, the refund is hit by doctrine of Unjust Enrichment, cannot sustain - the issue of unjust enrichment is also held in favour of the appellant. Appeal allowed - decided in favor of appellant. - ST/40226/2019 - FINAL ORDER NO.41027/2019 - Dated:- 13-8-2019 - Smt. Sulekha Beevi C.S, Member (Judicial) For the Appellant: Shri N. Viswanathan, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT, Chennai reported in 2018 (18) G.S.T.L.410 (Mad.) as well as the decision of the Hon ble High Court of Kerala in the case of M/s. Geojit BNP Paribas Financial Services Ltd. Vs CCE, CUS. ST, Kochi reported in 2015 (39) S.T.R.706 (Ker.). With regard to the second issue of rejecting the refund claim in not fulfilling the condition under Rule6A of Service Tax Rules, the learned counsel explained that the services were rendered outside India. The appellant had received the consideration by adjustment in their account in Indian currency. In fact, such payment ought to be considered as received in foreign currency since the remittances are adjusted in the accounts of service recipients and service provider being the group company. To support this argument, he relied upon the decision in the case of M/s. Mitsubishi Heavy Industries India Pvt. Ltd., Vs Central Excise, Delhi-II reported in 2017 (5) G.S.T.L. 321 (Tri.-Del.) and also in the case of M/s. Sun-Area Real Estate Pvt. Ltd., Vs Commissioner of Service Tax, Mumbai-I reported in 2015 (39) S.T.R.897 (Tri.-Mumbai). The third ground for rejection of refund claim was that the refund is hit by u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions stated in Rule 6A of Service Tax Rules. In the present case, the consideration has not been received in convertible foreign exchange and, therefore, it cannot be stated that the services have been exported. Thus, the appellants have not fulfilled the conditions and is not eligible for the refund. The third issue with regard to unjust enrichment was countered by the learned Authorised Representative stating that in the debit notes, the appellants had included the element of service tax. 4. Heard both sides. 5. As already narrated above, the refund was rejected on three grounds. 5.1 Firstly, that the refund claim was resubmitted on 03.07.2017 and therefore is barred by limitation. Undisputedly, the refund claim was initially filed on 06.01.2017. The department has returned the refund claim intimating defects in the same. While doing so, the department has not mentioned the period by which the defects can be rectified and the refund claim can be resubmitted. The appellants have rectified the defects and resubmitted the refund claim on 03.07.2017. Therefore, the date on which the refund claim was originally submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of currency fluctuations and that, by such designation, the producer in India is assured of receiving the contracted amount; undeniably, a necessary factor in minimizing the risk of budgetary overrun. This justification is, unarguably, acceptable as logical. The respondent did produce a certificate from Hong Kong and Shanghai Banking Corporation Ltd., their bankers, indicating that inward remittance from the overseas entity was in convertible foreign currency. The original authority rendered its findings after acknowledging this certificate. In the light of this, it is surprising that Revenue has chosen to argue that the condition of inward remittance in Export of Services Rules, 2005 had not been fulfilled. Admittedly, the Indian Rupee is not a freely convertible currency 16. and benefit of export privileges were sought to be denied on the ground that contract was designated in Indian rupees. By that very argument, Indian rupee could not have been received as inward remittance through the banking channels because of that very non-convertibility. Consequently, there is no justification for entertaining any doubt that inward remittances we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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