TaxTMI 
TaxTMI 
2018 (11) TMI 1218
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....ransfer and convey the business, including transfer of personnel on a slump sale (as defined under Section 2(42C) of the Income Tax Act, 1961) as a going concern and on ‚as is where is‛ basis, for a consideration specified in the said agreement. In relation to those services rendered during the period 01.01.2010 to 14.02.2010, the appellant made a claim for refund of service tax inputs used for provision of export services, under Rule 5 of CENVAT Credit Rules, 2004. The Assistant Commissioner-adjudicating authority thereafter issued a Show Cause Notice No. 13/2015 dt. 18.11.2015 as to why the claim of refund made by the appellant should not be rejected in terms of Section 73(1) read with Rule 14 of the CENVAT Credit Rules, 2004.....
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.... vide his order dt. 26.04.2016 rejected the claim for refund interalia on the ground that as per the bank statement submitted by the appellant, the amount was credited to the account of Sella Servizi Bancari S.C.P.A. instead of M/s. Sella Synergy India Pvt. Ltd. Ld.Adjudicating Authority had thereafter proceeded on assumption namely the Euro Account with BANCA SELLA, ITALY was operating at Italy; that on perusal of the corresponding bank statement for the period June, 2009 to May, 2010, it was evident and clear for him that the transactions made were for the operations at Italy, that it appeared that the amount instead of directly credited to the Account of SELLA SYNERGY INDIA PVT. LTD., 1st Floor ELNET Software City, TS140 Rajiv Gandhi Sal....
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....012, bank instructions sample Foreign Inward Remittance Certificates (FIRCs) in successor's name placed at pages 35 to 38 of the paper book to prove that the understanding of the Revenue with regard to the non-receipt of FIRCs was incorrect. The BTA reflects that the appellant's business was transferred as a going concern along with the assets and liabilities; subject to the conditions of the agreement title to and risk in the assets shall also be passed on to the transferee on the closing date. On the other hand Ld.DR supported the findings of lower authorities. 4. I have considered the rival contentions and perused the documents furnished in the appeal paper and also paper book and on perusal, I note that the Revenue has not disputed t....
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....d on by Ld.Consultant in the case of National Engg. Industries Ltd. Versus Commr. of C.EX., Jaipur 2008 (11) S.T.R.156 (Tri. - Del.) assumes importance. The facts of that case, as noted by the Delhi Bench, are that the appellant therein was the agent of General Motors Corpn. USA, had provided services of sourcing them the contract from Indian Railways. Under Rule 3 of Export of Services Rule, 2005, export of service was exempted from Service tax. The appellant had wrongly paid Service tax on the commission got from M/s. General Motors Corpn. through Indian Railways and claimed the refund of tax. The adjudicating authority had rejected the refund claim on the ground that it was hit by Rule 3(1)(b) of the said Rules which was upheld by Commis....
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....f benefit of Rule 4 of the said Rules is not justified. So, the impugned order is not sustainable and accordingly, it is set aside. The appeal is allowed with consequential relief. ...." 6. The dictum of the above case makes it 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. I also find that the authorities below have proceeded to reject on assumptions; paragraphs 15 and 16 of OIO points out that transactions made were for the operations at Italy which only means that Adjudicating Authority is not disputing that the services were rendered outside India. At the same time, it is relevant to note that the Revenue ....