TaxTMI 
TaxTMI 
2019 (9) TMI 1526
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....dgment passed by the Tribunal in the case Sun-Area Real Estate Private Limited in Appeal no. ST/885549/2014 [2015 (39) S.T.R. 897 (Tri. - Mumbai)]. 2. Heard both sides and perused the appeal records 3. The Ld. Chartered Accountant appearing on behalf of the appellant argued that the issue in the instant appeals are squarely covered in the decision passed by the Tribunal in case of Sun Area Real Estate Pvt. Ltd. in Appeal no. ST/88549/2014 [Supra]. The facts and the issue involved therein is identical which is tabulated below: Particulars In case of Sun Area Real Estate Pvt. Ltd [Supra] In case of Appellant Facts of the case Activity Engaged In Export of service ....
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....NR accounts can be repatriated freely, authorised dealers should not issue certificates against such remittances." 6. From the above provision it is clear that Foreign Inward Remittance Certificate (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 nonconvertible 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. I have gone through the Notification No. FEMA 9/2000-RB, dated 3rd May, 2000, the relevant para No. 4 of the said Notification is reproduced below : ....
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....ted 3-5-2000 issued by Reserve Bank of India. Regulation No. 3 of the said Notification is reproduced below : 3. Manner of Receipt in Foreign Exchange. - 1. Every receipt in foreign exchange by an authorised dealer, whether by way of remittance from a foreign country (other than Nepal and Bhutan) or by way of reimbursement from his branch or correspondent outside India against payment for export from India, or against any other payment, shall be as mentioned below: Group Manner of receipt of foreign exchange (1) member countries in the Asian Clearing Union (except Nepal) namely, Bangladesh. Islamic Republic of Iran, Myanmar, Pakistan and Sri Lanka (a) ....
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....in the present case the foreign remittance in Indian rupees through Deutsche Bank is the receipt of payment in convertible foreign exchange. 8. I have gone through the Hon'ble Supreme Court's judgment in the case of J.B. Boda and Company (supra) wherein it was held that : "12. The facts brought out in this case, are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurer, and that the remittance that the amount due to the foreign reinsurers as also the brokerage due to the appellant and the balance due to the foreign reinsurer is remitted (and expressed so) in dollars. It is common ground tha....
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....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 as to costs." 9. From the above judgment it is observed that out of the total payment to be made by the insurance broker in India to the foreign insurer was reduced to the extent of his brokerage and remaining amount was remitted to foreign insurer in the foreign exchange. The issue was whether the brokerage in Indian rupees retained by the Indian Insurance broker shall be treated as foreign exchange or otherwise. The Hon'ble Supreme Court has held that the said amount of brokerage retained by the Indian insurance broker from the total amount due to the foreign insurer shall be treated as foreign exc....