2009 (8) TMI 50 - HC - Service Tax

Whether the Appellants, who are manufacturers of non-alcoholic beverage bases (concentrates) are eligible to avail credit of the service-tax paid on advertising services, sales promotion, market research and the like availed by them and utilize such credit towards payment of excise duty on the concentrate - As now judicially recognized, Service tax is VAT which in turn is destination based consumption tax in a sense that it is on commercial activities and is not a charge on the business but on the consumer. Further, credit is availed on the tax paid on the input service, which is advertisement and not on the contents of the advertisement. Thus it is not necessary that the contents of the advertisement must be that of the final product manufactured by the person advertising Held that manufacturer can avail of the credit of the services tax paid by him for payment of CENVAT duty

Issues Involved
1. Whether services of advertising and marketing procured by the Appellants for advertisements of aerated waters are covered under "input services" as per Rule 2(1) of the CENVAT Credit Rules, 2004.
2. Whether advertisement or sales promotion of aerated waters by the manufacturer of concentrate is covered by the inclusive part of the definition of "input service" under Rule 2(1) of the CENVAT Credit Rules, 2004.

Issue-Wise Detailed Analysis

1. Advertising and Marketing Services as "Input Services"
The primary issue was whether the advertising and marketing services procured by the Appellants for aerated waters fall under the definition of "input services" in Rule 2(1) of the CENVAT Credit Rules, 2004. The Appellants manufacture non-alcoholic beverage bases (concentrates) used exclusively for aerated waters like Coca-Cola and Fanta. The advertisement expenses incurred by the Appellants form part of the sale price of the concentrates on which duty has been paid.

The court referred to the definition of "input service" in Rule 2(1), which includes services used directly or indirectly in or in relation to the manufacture of final products, advertisement or sales promotion, market research, and other activities relating to business. The court emphasized that the inclusive part of the definition enlarges the scope of input services, allowing credit for services that may not be directly covered by the initial part of the definition.

The Appellants argued that the advertisement of the brand name and the soft drink has a direct relationship with the manufacture of concentrate, as the demand for the concentrate is proportionate to the consumption of the soft drink. The court accepted this argument, noting that the advertisement expenses are part of the manufacturing cost of the concentrates and contribute to their marketability.

2. Advertisement and Sales Promotion as "Input Services"
The second issue was whether the advertisement or sales promotion of aerated waters by the manufacturer of concentrate is covered by the inclusive part of the definition of "input service." The court noted that the definition of "input service" includes services used in relation to advertisement or sales promotion, market research, and activities relating to business.

The court referred to various judicial pronouncements and the Finance Minister's speech during the Union Budget 2004-05, which highlighted the integration of tax on goods and services and the extension of credit of service tax across goods and services. The court also considered the OECD guidelines, which state that VAT is a consumption tax borne by the final consumer, and businesses should be allowed to take credit for tax paid on inputs.

The court concluded that the advertisement of aerated waters enhances the marketability of the concentrates and is therefore covered by the inclusive part of the definition of "input service." The court emphasized that the burden of service tax must be borne by the ultimate consumer, and denying credit for input services would go against the core principle of CENVAT as a value-added tax.

Conclusion
The court answered both questions in the affirmative, in favor of the Appellants and against the Revenue. The impugned order of the Commissioner, Central Excise, Bombay III, and the order of the Tribunal were set aside. The matter was restored to the file of the Commissioner, Central Excise, to pass an appropriate order in light of the judgment. The appeal was disposed of accordingly.

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