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TMI Blog2020 (2) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... ale. By stating that the goods namely concentrate was transferred for use by M/s Coca Cola India Pvt Ltd to the Appellant for consideration, a fact not in dispute, the sale of the goods in term of Central Excise Act, 1944 has occurred. 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 . There are no merits in the impugned order - appeal allowed - decided in favor of appellant. The issue involved in the present appeal is squarely covered by the decisions of the tribunal in case of Superior Drinks Pvt Ltd [ 2019 (6) TMI 272 - CESTAT MUMBAI ]. This decision in turn follows the decisions rendered by the Delhi Bench in case of Narmada Drinks (P) Ltd reported at [ 2017 (3) TMI 1106 - CESTAT NEW DELHI ] and also in case of Narmada Drinks (P) Ltd reported at [ 2018 (6) TMI 899 - CESTAT NEW DELHI ]. Similar view has been expressed by the Allahabad Bench in case of Brindavan Bottlers Ltd [ 2019 (3) TMI 1428 - CESTAT ALLAHABAD ] and Mumbai Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaken by the appellants. 2.4 Appellants had claimed the expenses towards (i) Incidence Support (ii) Pet 2 Ltr Support (iii) Kinley Water Support (iv) Marketing Claim (v) Red element Claim (vi) Parivartan Support (vii) UTC Scheme (viii) Modern Trade Support (ix) Lakshay Reward (x) New Product Launch Support (xi) Festival Gift Packs (xii) Limca Display (xiii) Chandi Ki Bottle Scheme (xiv) Limca Book of Records (xv) Tiranga Display Scheme (xvi) Chiller Visibility (xvii) MMNF 400 ml Support (xviii) Pet Soda Support (xix) Fanta Bounce Mobile Sampling (xx) Fanta Incentives (xxi) Signage Support (xxii) RSSB Maaza Tetra Support (xxiii) IPL Sampling (xxiv) Maaza 200 ml RGB Activation (xxv) Baisakhi Sampling (xxvi) Vat Support Concentrate Support (xxvii) Bus Support (xviii) Brand Support. 2.5 Show Cause Notices as detailed in table in para 1 supra were issued to the appellants alleging that while undertaking the sale promotion programme for the beverages, the concentrate owned by TCCC/CCIPL was also getting marketed as the same was linked to the promotion of brand name. Thus the appellants were promoting the sale of concentrate of CCIPL for which they were receiving the remuneration from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as has been held in the case of Hindustan Aeronautics Ltd [2019 (370) ELT 699 (T-Bang)] 3.3 Arguing for the Revenue, the learned Authorized Representative submits that - The conclusions drawn by the Mumbai bench in case of Superior Drinks [2019 (8) TMI 272 CESTAT Mumbai} at para 5.2 to 5.4 are not correct in as much as that it holds that there is contract between Coca Cola USA and the bottler but not between the bottler and Coca Cola India, the supplier of concentrate Para 5.7 draws the conclusion that there is no service provider and service recipient relationship between Coca Cola India and the Bottler, the whole judgment treats Coca Cola India and Coca Cola USA as two separate entities one selling the concentrate and the other as brand owners. The service agreement between Coca Cola Inc USA 9CCI) and Coca Cola India Pvt Ltd (CCIPL) was not before the bench at material time. As per this agreement Coca Cola USA works as an agent of Coca Cola India and all the terms and conditions have been set by India Company the supplier of concentrate. Clause 1(iv), 3, 6. From this service agreement it is evident that Coca Cola USA who has entered in to agreement with the bottlers have done s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per wishes of Coca Cola. All these conditions reflect that concentrate is only transferred or use and not sold to the bottler, it never becomes the product of bottler. 4.1 We have considered the impugned orders along with the submissions made in the appeals, during the course of arguments and in the written submissions filed. 4.2 We find that the issue involved in the present appeal is squarely covered by the decisions of the tribunal in case of Superior Drinks Pvt Ltd [2019 (6) TMI 272 CESTAT Mumbai]. This decision in turn follows the decisions rendered by the Delhi Bench in case of Narmada Drinks (P) Ltd reported at 2017 (5) GSTL 369 (T-Del)] and also in case of Narmada Drinks (P) Ltd reported at [2018 (6) TMI 899 (T-9 Del)]. Similar view has been expressed by the Allahabad Bench in case of Brindavan Bottlers Ltd [2019 (27) GSTL 354 (T-All)] and Mumbai Bench in case of SMV Beverages Pvt Ltd [2018 (17) ELT GSTL 284 (T-Mum)]. 4.3 Learned Authorized Representative do not dispute that the issue is squarely covered by the above decisions but questions the decisions themselves. In his submission he has referred to Service Agreement between Coca Cola USA (CCI) and Coca Cola India Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Nestle India Ltd [2009 (248) ELT 737 (T-Bang)] has held as follows: 3 As per the definition of Sale or Purchase under Section 2(h) of Central Excise Act, 1944 means . . In the instant case, the sale is transfer of ownership of goods from M/s Nestle India Ltd to Indian Army/ ITBP. From the Central Excise point of view the transaction ends there. Beyond the point of sale, The Central Excise Act, 1944 does not have any provisions to look into the intended use of the goods transacted. Once the ownership of the goods is transferred to the buyer of goods, the intended use of the goods must not be, a factor to determine the manner of assessment of the goods for duty under Section 4/ 4A of the Central Excise Act, 1944. Thus by stating that the goods namely concentrate was transferred for use by M/s Coca Cola India Pvt Ltd to the Appellant for consideration, a fact not in dispute, the sale of the goods in term of Central Excise Act, 1944 has occurred. The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence we do not merit in the submission of the Authorized Representative that this transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is on commercial activities and is not a charge on the business but on the consumer. Just as excise duty is a tax on value addition on goods. Service tax is on the value addition by rendition of service. See All India Federation of Tax Practitioners v. Union of India 2007 (7) S.T.R. 625 (S.C.) = (2007) 7 SCC 527. 3 . Credit has been denied on the ground that the advertisements do not relate to concentrates manufactured by the Appellants. It is not disputed that the advertisement expenses incurred by the Appellant form part of the sale price of the concentrates on which duty has been paid. 5.10 While considering the questions as above High Court has recorded what has been state by the Commissioner. In the case before High Court, the advertisement expenses were incurred by Coca Cola India and High Court had held that expenses towards advertisement services are part of the cost incurred for production of the finished product, and hence these services are to be treated as input services for determining eligibility to CENVAT Credit. In our view the decision of High Court does not state what Commissioner has intended to conclude from the same. 4.8 In view of the discussions as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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