9911796707
TMI Blog2019 (9) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... f both the adjudicating and appellate authorities. The instant appeals are squarely covered by the decision of the Tribunal in the case of SUN-AREA REAL ESTATE PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [ 2015 (5) TMI 885 - CESTAT MUMBAI] where it was held that 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. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... mittance 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 Rs. l5,000/- certificates in form BCI with serial numbers and reference numbers may be issued on the letter-head of the authorised dealer ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he account of a bank or an exchange house situated in any country outside India, maintained with an authorised dealer." From the sub-Para (2) of Para 4 above it is very clear that, when a person receives in India payment in rupees from the account of a bank situated in any country outside India maintained with an authorised dealer, the payment in rupees shall be deemed to have repatriated the realized foreign exchange to India. In the present case, the payment in Indian rupees was received from foreign country through Deutsche Bank. Therefore, the said Indian rupee is nothing but foreign exchange repatriated from foreign country to India. Therefore, such payment in rupees is equal to the foreign exchange. The manner of receipt of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final destination as mentioned in the declaration form irrespective 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 through 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 conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment has been received through foreign bank i.e. Mizuho Corporate Bank Ltd, for which, FIRC has been issued by the banks. The copy of FIRC has been submitted during the course of adjudication proceedings, which is evident from the recordings of both the adjudicating and appellate authorities. a. I find that in order in appeal- 03-08/ST-I/Kol/2015 dated 23-03-2015 [ Refer Para7] where the CCE(Appeals) records the facts as below: "…………I find that this is a fact that the appellant have received the value of service in Indian Rupees in all the case of refund application…………" b. I also find that the adjudicating authority in order OIO- 130/ REFUND/ND/ ST-1/KOL/2015-16 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
