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TMI Blog2017 (3) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... um - A/86400-86401/17/STB - Dated:- 17-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Hon ble Mr. Raju, Member (Technical) Shri K.K. Anand, Advocate, for appellant Shri D. Nagvenkar, Additional Commissioner (AR), for respondent ORDER Per M. V. Ravindran These appeals are directed against order-in-original No. 53/ST/2012/C dated 20.9.2012. 2. The relevant facts that arise for consideration are M/s. SMV Beverages Pvt. Ltd. (hereinafter referred to as the main appellant) is engaged in the manufacturing of Pepsi range of products such as Pepsi, Mirinda, Mountain Dew, 7-up, Slice, Aquafina and fruit juices; is a franchisee of M/s. Pepsi Foods Pvt. Ltd. and is also engaged in trading of Pepsi brand products like Slice, Nimboo, bottle and cans of Pepsi, Mirinda Orange, 7-up and Mountain Dew. The traded items are purchased from M/s. Pepsico India Holdings Pvt. Ltd. The main appellant purchased concentrate i.e. basic raw material from I . Officers of the department visited the premises of the main appellant and scrutinized the records and found that in the balance sheet, appellant is showing additional income under the head Net Incentive and Support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketing and other expenses, which mutually benefits the main appellant as well as PFL; the expenses incurred by the main appellant for promoting and marketing is in respect of the products sold by them and is not on behalf of PFL, which indicates that BAS is not applicable. He would submit that the decision of the Tribunal in the case of Bharat Petroleum Corporation vs. CST, Mumbai-I 2014 (36) STR 433 would be applicable, as in that case, BPCL and HPCL purchased CNG from Mahanagar Gas Ltd. and sold to their dealers, which required HPCL and BPCL to provide some facilities like water, electricity and other utilities, the cost of which was borne by MGL. It is his submission that the Tribunal held service tax is not attracted on the amounts received by HPCL and BPCL; the Hon ble High Court of Punjab Haryana in the case of CCE, Chandigarh vs. Nahar Industrial Enterprises Ltd. 2010 (19) STR 166 (P H) also held that service tax liability can be levied only if the services as sought are provided. He would submit that in the case of CST, Mumbai-I vs. Sai Service Station Ltd. 2014 (35) STR 625, the Tribunal held that amounts received for achievement of sales and target as ince ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasing the sale of aerated waters, the concentrate of such aerated waters are marketed by the main appellant. 5. We have considered the submissions made at length by both sides and perused the records. 6. We find that it is undisputed that the main appellant is a bottler of Pepsi brand of aerated waters and is purchasing concentrate from PFL and converting into aerated waters sells the same to various distributors, PFL discharges central excise duty on the concentrate so sold to the main appellant; the manufacturing activity of aerated waters is diluting the concentrate purchased from PFL; the main appellant is also engaged in the trading activity of various canned products of Pepsi brand which are purchased by them from Pepsico India Holdings Ltd. which is not the same as PFL. In order to enhance the sales of aerated waters, the main appellant undertakes marketing and advertising of the products. As per the agreement entered into with PFL, the said expenses are shared in a particular manner and the main appellant has received an amount during the relevant period from PFL, which is sought to be taxed by the adjudicating authority under the head business auxiliary service . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appellant under category (i) or (ii) of the definition as reproduced herein above. For doing so, he has relied upon the PFL's Bottling Appointment and Trade Mark Licence Agreement entered into by the main appellant. 9. We have perused the agreement entered into by the main appellant with PFL and find that the entire agreement talks about the sale of concentrate to the main appellant and the conditions for bottling the said trade mark like Pepsi, Mirinda, 7-up etc. The said agreement also provides for rights of PFL to sell and distribute beverages in other areas by appointing various bottlers. We have specifically perused the clauses relied upon by the adjudicating authority which is 11(b) and (d). On perusal of the said clauses, we notice that it talks about the steps necessary to be taken by the main appellant to promote and enhance the visibility and goodwill of trademarks and in particular the main appellant shall endeavour to maximize the sales and to increase the beverage's share of market. Both the clauses when scrutinized in depth, do not indicate that the main appellant is required to promote or market or sale of goods produced or provided or belonging to PFL. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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