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2020 (11) TMI 925 - AT - Service TaxBusiness Auxiliary Services - promotion or marketing of goods produced or provided by or belonging to the client - transfer of right to use - demand of interest and penalties - extended period of limitation - HELD THAT - The issue has been dealt by this Tribunal in appellant s own case for the earlier period, wherein this Tribunal observed that The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence there are no merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only transfer to use . As issue has already been settled in favour of the appellant, therefore, no demand of service tax is sustainable against the appellant - appeal allowed - decided in favor of appellant.
Issues:
- Interpretation of Bottlers Agreement and Business Auxiliary Service (BAS) in relation to promotion of beverages and concentrates. - Applicability of previous Tribunal decisions and legal principles to the current case. - Determination of sale versus transfer for use in the context of Central Excise Act. - Relevance of advertising expenses and promotion activities in relation to CENVAT Credit eligibility. Analysis: The judgment revolves around the interpretation of a Bottlers Agreement and the issue of whether the Appellant's activities amount to providing Business Auxiliary Service (BAS) by promoting beverages and concentrates. The Tribunal considered the clauses of the agreement, focusing on the promotion of goods and the financial contributions for marketing programs. The Tribunal analyzed previous decisions and found that the issue was already addressed in the appellant's earlier case. The Tribunal dismissed arguments questioning the applicability of previous decisions and emphasized that the promotion of concentrates by the manufacturer of finished products does not automatically constitute BAS. In the context of the Central Excise Act, the Tribunal examined the definition of sale and purchase, emphasizing that the transfer of possession for consideration signifies a sale. The Tribunal referred to a case involving Nestle India Ltd to support the position that the transfer of goods for use constitutes a sale. The Tribunal rejected the argument that the transaction was merely a transfer for use, highlighting the applicability of the Central Excise Act definition of sale. Regarding the relevance of advertising expenses and promotion activities, the Tribunal discussed a High Court decision on CENVAT Credit eligibility for advertising services. The Tribunal distinguished the High Court decision, emphasizing that advertisement expenses are part of the cost incurred for production of finished products. The Tribunal concluded that the appellant's activities did not amount to BAS and set aside the impugned order, allowing the appeal with consequential relief. In summary, the judgment clarifies the interpretation of the Bottlers Agreement, addresses the issue of BAS in promoting goods, and establishes the distinction between sale and transfer for use under the Central Excise Act. The Tribunal's analysis of previous decisions and the relevance of advertising expenses provide a comprehensive understanding of the legal principles applied in the case.
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