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TMI Blog2020 (3) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ness Auxiliary Service in this category. This is neither the intention nor the rationale of the scheme of taxable category defined as Business Auxiliary Service . Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 716 of 2012 - FINAL ORDER NO. 60321/2020 - Dated:- 19-2-2020 - HON BLE MR. S. S. GARG, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Present for the Appellant: Ms. Krati Singh, Advocate Present for the Respondent: Mr. Vijay Gupta, Authorized Representative ORDER PER: SANJIV SRIVASTAVA This appeal is directed against order-in-original No. 46- 47/ST/CHD/2012 dated 01.03.2012 of the Commissioner of Central Excise, Chandigarh II. By the impugned order, the Commissioner has held as follows: i. I confirm the demand of Service Tax amounting to ₹ 3,74,67,511/- (Rupees Three Crore Seventy Four Lakhs Sixty Seven Thousand Five Hundred and Eleven only) against the noticee M/s Kandhari Beverages (P) Ltd., Plot No. 177-F, Industrial Area, Phase I, Chandigarh by invoking extended period of limitation as provided under Section 73 of the Act, to be recovered along with interest as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.10.2011 were issued to the appellant alleging that while undertaking the sale promotion programme for the beverages, the concentrate owned by CCIPL was also getting marketed as the same was linked to the promotion of brand name. Thus, the appellant was promoting the sale of concentrate of CCIPL for which they were receiving the remuneration from them in form of marketing and advertising support. Thus appellant was providing Business Auxiliary Services (BAS) of promotion or marketing of goods produced or provided by or belonging to the client to CCIPL. Since appellant had not paid the Service Tax on taxable services provided by them under the category of Business Auxiliary Services as defined under Finance Act, 1994, the show cause notice demanded the service tax, leviable but not paid by the appellant during the relevant period as per Section 73 of the Finance Act, 1994. It also proposed to demand interest under Section 75 ibid and penalties under the relevant provisions. 2.6 The show cause notices were adjudicated by the Commissioner as per the impugned order referred in para 1, supra. 2.7 Aggrieved by the impugned order, the appellant have filed this appeal before C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 so with the approval and instructions of Coca Cola India. Thus all the sale promotion and marketing activities undertaken by the bottler have been done under the directions of Coca Cola India only. Bottler undertake the sales promotion as per the instructions and programme of Coca Cola (Para 7 under Obligations of The Bottler Relative to the Marketing Planning and Reporting) Coca Cola India has in case decided by Hon ble Bombay High Court has held that by advertising and sales promotion of Beverages sale of concentrate is enhanced. Sales promotion by bottler enhances the demand and accordingly the market value of concentrate (Clause 9 of the agreement) The conclusion that the act of promotion of beverage lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so in case of Narmada Drinks (P) Ltd reported at [2018 (6) TMI 899 (TDel)]. 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 does 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 Pvt Ltd (CCIPL) to state that Coca Cola USA work as an agent of Coca Cola India and all terms and conditions of have been set by Indian Co which nis the supplier of concentrate. Thus the findings recorded by the Mumbai bench in case of Superior Drinks (supra) in 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 bottler but not between bottler and Coca Cola India who is the supplier of concentrate. This agreement now being referred to by the learned Authorized Representative is not even part of relied upon documents or have even been referred in the Show Cause Notice. In such a situation the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 transaction was not a truncation of sale but only transfer to use . 4.5 Thus the arguments advanced by the Authorized Representative in respect of non applicability of the decision of CESTAT in case of SMV Beverages, too need to be rejected. 4.6 In any case if the arguments advanced by the Authorized Representative, were to be accepted then in every case, sale promotion activities undertaken by the manufacturer of finished product, shall amount to sale promotion of the raw material, and the service so rendered to the raw material supplier will be taxable as Business Auxiliary Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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