Case Law Details

Case Name : Sun-Area Real Estate Pvt. Ltd. Vs. Commissioner of Service Tax
Appeal Number : [2015-TIOL-956-CESTAT-MUM]
Date of Judgement/Order :
Related Assessment Year :
 CA Bimal Jain

We are sharing with you an important judgment of the Hon’ble Mumbai Tribunal, in the case of Sun-Area Real Estate Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai-I [2015-TIOL-956-CESTAT-MUM] on following issue:

Issue:

Whether the conditions of export of services under the erstwhile Export of Service Rules, 2005 is satisfied when the payment was received in Indian Rupees through a Foreign Bank, who have issued Foreign Inward Remittance Certificate?

Facts:

Sun-Area Real Estate Pvt. Ltd. (“the Appellant”) received payment against export of services in Indian Rupees through Deutsche Bank, who have issued Foreign Inward Remittance Certificate (“FIRC”) as statutorily provided under Exchange Control Manual of Reserve Bank of India (“RBI”). Further, it was also certified in the FIRC that the payment thereof has not been received in non-convertible rupees or under any special trade or payments agreements. Accordingly, the Appellant filed refund claim amounting to Rs. 10,89,279/- in respect of Service tax paid on export of services under the erstwhile Export of Service Rules, 2005 (“the Export of Service Rules”).

The Department denied refund to the Appellant on the ground that since in the present case, the payment was received in Indian Rupees, therefore, the condition of Rule 3(ii) of the Export of Service Rules is not complied with. Thereafter, the refund claim was rejected by the Ld. Commissioner (Appeals).

Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Mumbai relying upon Notification No. FEMA 9/2000-RB and FEMA 14/2000-RB dated May 3, 2000 issued by RBI under Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 (“FEMA Notifications”) to provide that as per Foreign Exchange Management Act, 1999 (“FEMA”) provisions, when the payment against any export is received even in Indian Rupees, but through authorised dealer, the payment/ remittance should be considered as foreign exchange.

Held:

The Hon’ble CESTAT, Mumbai held as under:

  • As per Clause 3A. 6(i) of the Exchange Control Manual, it is clear that 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 payment in convertible foreign exchange;
  • In terms of FEMA Notifications, it is very clear that, when a person receives payment in Indian 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 terms of Regulation 3 made under Section 47 of the FEMA, in the present case the foreign remittance in Indian Rupees through Deutsche Bank is the receipt of payment in convertible foreign exchange;
  • In the case of B. Boda and Company Private Ltd. Vs. Central Board of Direct Taxes [AIR 1997 SC 1543] the payment towards insurance brokerage retained by the Indian agent from the total payment of premium to be paid to the foreign insurance company in foreign exchange, was held to be retained in foreign exchange;

Accordingly, it was held that even though the Appellant received the payment in Indian Rupees but the same is deemed to be convertible foreign exchange and accordingly the condition as provided under Rule 3(ii) of the Export of Service Rules stand complied with.

Point to Note:

Effective from July 1, 2012, the erstwhile Export of Service Rules, 2005 has been replaced with the conditions contained under Rule 6A of the Service Tax Rules, 1994 (“the Service Tax Rules”) read with Rule 6(8) of the Cenvat Credit Rules, 2004. In terms of Rule 6A (1) of the Service Tax Rules, the six essential requisite conditions to be fulfilled for a service to be considered as export of service are mentioned here under:

(a) the provider of service is located in the taxable territory;

(b) the recipient of service is located outside India;

(c) the service is not a service specified in Section 66D of the Finance Act, 1994;

(d) the place of provision of the service is outside India (determined as per the Place of Provisions of Services Rules, 2012);

(e) the payment for such service has been received by the provider of service in convertible foreign exchange, and

(f) the provider of service and  recipient of service  are not merely establishments of a distinct person in accordance with  item (b) of Explanation 3 of clause (44) of section 65B of the Finance Act, 1994.

Since, the condition of receiving payment under convertible foreign exchange still prevails even after July 1, 2012, the relevance of afore stated judgment still holds good.

(Bimal Jain, FCA, FCS, LLB, B.Com (Hons),  Email: bimaljain@hotmail.com)

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7 responses to “Export condition fulfilled even if payment is received in Indian Rupees”

  1. Mohan says:

    Dear sir,

    What if we billed in AED but the client paid in INR(by NEFT)

  2. Raju Sarkar says:

    Dear Sir,

    My client sent payment in INR directly from ANZ bank from New Zealand for an export . my bank wants the shipping bill and the payment information. My shipping bill was in NZD and i have got the payment in INR. Because i told her the prices in INR. I made the shipping bill in NZD because my courier told me to do so. Now bank is telling that i should get the payment in NZD.
    What should i do now?

    The bank can not submit the shipping bill for Reserve Bank of India because i have the shipping bill ready but they can not get the information of payment of SWIFT.
    I showed them the copy of receipt of my client which they sent me.

    Please let me know.
    Thank you
    Raju

  3. Ashish Sharma says:

    Dear Sir,

    My client sent payment after converting dollar in INR so my bank has issued inward remittance advices in place of FIRC so shall I have to pay service tax on export services provided to US client from April to June 2017??

    Thanks
    Ashish

  4. Tejashiwni says:

    My client( partnership firm) has provided some software services from 2014 to clients situated outside india. ( ie export of services) . However the remitttances and all transactions relating to foreign transactiosn has been routed in an elance account . Now the client wants to open a current account in India and transfer the money from the elance account to this current account. Kindly advise what would be the best way to show the remittances. ie whether to open a current account in india and transfer the money from Elance to current account or any other solutions.

    Thanks & regarda,

    Tejashwini

  5. Sohil Patel says:

    Dear Sir,

    As per your informative article I would like to know that We are the manufacturer of Chocolates & chocolate product. We sales our product to Nepal customers and received the payment in Indian rupees non-convertible currency. Whether this transaction can be treat as an export ? Can we availed export benefits ?

    please advice

    Thanks

  6. Umesh Goel says:

    Dear Mr Jain, thanks for your informative article, we are providing computer simulation services from our office in India to a customer in Dubai. We understand that we are not required to charge service tax under the export of service rules.

    Please give your valued opinion if we are required to charge / pay service tax.

    Thanks,
    Umesh Goel

  7. tejas says:

    Dear Vimalji,
    i have 1 question,
    out company is IT company and director are new company established new company in Canada, 2 director form india(Partner as india base company) and other 2 director form Canada, and company provide many it services from india to foreign client and bill raised form canada base company, further we also raised bill from india to in name of Canada base company for provided service and dollar inward to india from Canada in CAD or USD, so it is Export or taxable service.
    pl give advise…
    thanks in advance…

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