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TMI Blog2020 (11) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Service Tax Appeal No. 51051 of 2015 - - - Dated:- 25-11-2020 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) And HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Ms. Krati Somani, Advocate for the Appellant Shri Vijay Gupta, Authorised Representative for the Respondent ORDER PER ASHOK JINDAL Heard both side. 2. The Ld. Counsel for the appellant submits that this is a subsequent show cause notice for the period 2011, to June, 2012 and the show cause notice issued for the earlier period, this Tribunal dealt the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Two SCNs dated 16.04.2013 23.05.2014 were issued to the Appellant alleging that while marketing beverages, the concentrate owned by CCI was also getting marketed and that promotion of concentrate was inextricably linked to the promotion of brand name. Thus, the Appellant is promoting sale of concentrate of CCI for which, the latter is paying a consideration in the form of support price. In turn, the Appellant is providing BAS of promotion or marketing of goods produced or provided by or belonging to the client to CCI. The department relied on the clause 7 of the agreement between the Appellant and CCI, which is extracted below: The Bottler must, for its own account, budget and expend such funds for advertising, marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. 5. As the issue has been dealt by this Tribunal in appellant s own case for the earlier period, wherein this Tribunal observed as under: 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions reflect that concentrate is only transferred for use and not sold to the bottler. The fallacy in the arguments advanced is self evident if we refer to the definition of sale and purchase as per Section 2(h) of the Central Excise Act, 1944 as it existed then. The said definition has been made applicable to Chapter V of Finance Act, 1994 as per Section 65 (121) ibid. The relevant provisions are reproduced below: Section 2(h) of Central Excise Act, 1944 sale and purchase , with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration; Section 65 (121) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Aux ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verage bases (concentrates) are eligible to avail credit of the service-tax paid on advertising services, sales promotion, market research and the like availed by them and utilize such credit towards payment of excise duty on the concentrate. As now judicially recognized, Service tax is VAT which in turn is destination based consumption tax in a sense 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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