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TMI Blog2015 (12) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 4,51,66,650.00 4. C. No.D-III/ST/R-II/SCN/ Carlsberg/187/2010/2564 dated 15.06.2011 2007 - 08 to 2009 - 10 46,11,774.00 5. C. No.D-III/ST/R-II/SCN/ Carlsberg/187/2010/5929 dated 18.10.2011 2010 - 11 30,74,516.00 6. C. No.D-III/ST/R-II/SCN/ Carlsberg/187/2010/3076 dated 23.08.2012 2011 - 12 35,76,049.00 2. The facts of the case are as under:- The appellant was centrally registered for service tax at Gurgaon under the categories of :Transport of Goods by Road Service", Intellectual Property Service other than Copyright", "Management Consultants Service", "Test, Inspection, Certification Service", "Market Research Agency Service" and "Scientific and Technical Consultancy Service". The appellant was manufacturing beer under the Trademarks owned by M/s. Carlsberg Breweries A/S, Denmark. The appellant entered into the India Licence Agreement (ILA) dated 07.12.2006 with Carlsberg Denmark and has been manufacturing beer under trademarks "Carlsberg", "Tuborg" and "Palone" owned by Carlsberg Denmark under the ILA and addendum to the ILA dated 25.09.2008. At the time of entering into the ILA, the trademarks, "Carlsberg" and "Tuborg" were already registered in India vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and Carlsberg Denmark did not satisfy the ingredients of a franchise agreement. (j) Even if it is assumed without accepting that non-monetary consideration is involved in the impugned transaction, the value of similar services by Carlsberg, Denmark to any other person is the taxable value to be adopted. (k) Without prejudice to the other submissions, it was submitted that the amount alleged to have been paid by the appellant must be treated as cum-tax amount and service tax has to be calculated accordingly. (l) There was no wilful mis-statement or suppression of facts and so extended period of limitation cannot be invoked in the present case which will make substantial part of demand time barred. (ii) The appellant made elaborate submissions on each of the aforesaid points which are not being repeated here. It also demonstrated that similar submissions were made before the adjudicating officer too. It also claimed to have provided the actual figures to the Commissioner but the Commissioner resorted to best judgement assessment in respect of demand confirmed under franchise service for the periods 2010-11 and 2011-12. Under the best judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 65(55a) ibid, effective from 10.09.2004, with M/s. Carlsberg Breweries A/S Denmark (foreign Principal) to manufacture and sell the licenced products using Trademarks Carlsberg and Tuborg in the territory, on a temporary basis. Further, In view of the aforementioned discussions, it is clear that, the said agreements between M/s. CIPL & M/s. Carlsberg Breweries A/S, Denmark are " clearly in the nature of temporary transfer of the use of Trademark, which is owned by M/s. Carlsberg Breweries A/s, Denmark. Therefore it is clear that the Ms. Carlsberg Breweries A/S, Denmark has provided the service to M/s. CIPL, which falls under the category of "Franchisee Service", defined under Section 65 (105) (zze) ibid, effective from 01.07.2003 as amended and the contentions of the noticee that M/s. Carlsberg Denmark was not providing Franchisee service to the Noticee under ILA hence demand is not sustainable, is not correct and does not hold ground. Further, it is observed that M/s. Carlsberg Breweries A/S, Denmark and M/s. CIPL has mutually agreed to waive-off their respective legal rtights of Royalty and Above-the-Line activity marketing contribution claim, which is equal to the Royalty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 76 of Chapter V of the Finance Act, 1994 for not paying the appropriate Service Tax by the prescribed due dates; (iv) Interest on the amount determined to be payable by the said noticee should be charged from them under Section 75 of Chapter V of the Finance Act, 1994. 41. Further the Demand raised in the five other Show Cause Notices issued vide C.No. 1. D-III/ST/R-II/SCN/ Carlsberg/187/2010/2564 dated 15.06.2011 - Amount Rs. 46,11,774/- 2. D-III/ST/R-II/SCN/ Carlsberg/187/2010/5929 dated 18.10.2011 - Amount Rs. 30,74,516/- 3. D-III/ST/R-II/SCN/ Carlsberg/187/2010/5929 dated 18.10.2011 - Amount Rs. 30,74,516/- 4. D-III/ST/R-II/SCN/ Carlsberg/187/2010/3076 dated 23.08.2012 - Rs. 35,76,049/- 5. D-III/ST/R-II/SCN/ Carlsberg/187/2010/4649 dated 18.10.2012 - Amount Rs. 4,51,66,650/-. On similar issue is being confirmed on same lines as per CBEC Circular No.752/68/2003-CX dated 1.10.2003, and M/s. CIPL is liable to pay interest and penalty in the similar ratio as per order in the instant case, along with service tax demanded respectively in each case." From the perusal of the aforesaid paragraphs, it becomes loud and clear that none of the contentions of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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