Whether benefit under Export of services inadmissible on failure to provide Bank Realisation Certificate ?

PJ/Case Laws/2012-13/1285

Case:-M/s EMERSON PROCESS MANAGEMENT Versus COMMISSIONER OF CENTRAL EXCISE, DAMAN

Citation:-2012-TIOL-1409-CESTAT-AHM

Brief Facts:- This Stay Petition is filed for waiver of pre-deposit of amount confirmed by the adjudicating authority and upheld by the first appellate authority as Service Tax liability on the amount of commission received by the appellant from the off country manufactures. The first appellate authority has rejected the appeal only on the ground that the appellant was not able to produce any bank realization certificate which indicates that the amounts have been received in foreign exchange. Thus, the benefit of the provisions of Export of Services Rule, 2005 is not available to the appellant. As such, the services provided by them cannot be considered as export of services. Consequently, they are liable to pay Service Tax on services provided by them as commission agent in India which is chargeable to duty under Business Auxiliary Service.

Appellant’s Contention:- The Appellant submits the Bank Realization Certificate with the Appeal Memorandum.

Respondent’s Contention:-The Respondent said that appellant did not produce any bank realization certificate to the lower authorities indicating that the amounts have been received in foreign exchange.

Reasoning of Judgement:-On perusal of the said remittance certificate, it was held that the appellant could have produced the said Bank Realisation Certificate before the lower authorities when the matter was taken up by them, and that they were available with the appellant during the proceedings and the appellant have taken the issue very lightly. They could have avoided the unnecessary litigation, and in the interest of justice, the matter needs to be reconsidered by the lower authorities. Accordingly, without expressing any opinion on the merits of the case, keeping all the issues open, the impugned order was set aside and matter remitted back to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice.

Decision:-Appeal allowed by way of remand.

Comment:This case again confirms the fact that benefits cannot be denied on account of mere procedural lapses or technical breaches on part of the assessee.

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PJ/Case Laws/2012-13/1285

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