2017 (4) TMI 703 - AT - Service Tax

Business Auxiliary service - pouring fees from Pepsi, the soft drink company with whom they have a contractual arrangement for display and sale of various products of the client - Held that - pouring fees as received by the appellant cannot be considered as a discount for sale transaction or as a payment for non-compete reason as given by the appellant. The indication is that it is more in the nature of fee received for promotion of Pepsi products - there is no merit in the appellant s plea regarding non-taxability of the said consideration received by them. Extended period of limitation - penalty - Held that - even on enquiry the appellants did not take any effort to get the issue clarified except seeking advice from Pepsi. When the appellants were showing and discharging service tax on receipts for various promotional activities it is apparent that significant portion of receipt under the category of pouring fees received for such activities should have been included in the tax returns during the material time - extended period and penalty rightly imposed. Appeal dismissed - decided against appellant.

Issues:
1. Service tax liability on "pouring fees" received from Pepsi.
2. Interpretation of agreement between the appellant and Pepsi.
3. Taxability of pouring fees under Business Auxiliary Service.
4. Appellant's plea on non-compete fees and time bar for penalty imposition.

Comprehensive Analysis:
1. The appeal addressed the service tax liability on "pouring fees" received by the appellant from Pepsi for promoting Pepsi products in their cinema houses. The dispute arose when the Revenue considered the pouring fees as taxable income under Business Auxiliary Service, leading to a demand for service tax and penalties. The appellant argued that the pouring fees were akin to an additional discount or non-compete fees, not liable to service tax, emphasizing their exclusive arrangement with Pepsi. However, the Revenue contended that the pouring fees were for promotional activities, evident from the agreement terms, and should have been included in the tax returns by the appellant.

2. The interpretation of the agreement between the appellant and Pepsi was crucial in determining the nature of the pouring fees. The agreement outlined the supply of products and dispensing equipment by Pepsi, with the appellant responsible for promoting and selling these products. The pouring fees, as per the agreement, were structured over a six-year period, starting from a fixed amount and progressively increasing. The Revenue argued that the pouring fees were for promotional activities, while the appellant claimed it to be a discount or non-compete fee, highlighting their exclusive arrangement with Pepsi.

3. The taxability of pouring fees under Business Auxiliary Service was a key issue in the appeal. The appellant contended that the pouring fees were not directly attributable to the sale of Pepsi products but were part of a broader agreement for promotion and display. The Revenue maintained that the pouring fees constituted consideration for promotional activities undertaken by the appellant, as indicated by the agreement terms and payment schedule. The tribunal analyzed the agreement clauses and promotional support details to conclude that the pouring fees were for promoting Pepsi products and thus taxable under Business Auxiliary Service.

4. The appellant's plea on non-compete fees and the time bar for penalty imposition was also considered. The appellant argued that the pouring fees should be treated as non-compete fees due to their exclusive arrangement with Pepsi, and there was no malafide intent in not discharging service tax on the pouring fees. However, the tribunal found that the appellant failed to disclose the pouring fees in their tax returns despite being registered with the Department, indicating negligence. The tribunal upheld the Revenue's decision to demand service tax for the extended period and impose penalties, dismissing the appeal based on the findings.

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