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TMI Blog2024 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bulk Packaged Drinking Water under the brand name 'Aquafina' in terms of franchisee Agreement dated 09.06.2003 with M/s Pepsi Foods Private Limited [Pepsi]. The brand name 'Aquafina' belongs to M/s Pepsi. It is not disputed on record that the franchisee services are liable to Service Tax. Earlier the dispute arose for Financial 2007-08 relating to the service tax on the incentive received from M/s Pepsi to allegedly promote the sales of goods of Pepsi brand. 3. The allegations were made vide Show Cause Notice [SCN] dated 18.09.2012 that these services provided by the Appellant to M/s Pepsi falls under the taxable category of 'Business Auxiliary Services' defined under Section 65(19) of the Finance Act, 1994 [The Act]. The SCN was adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Six Lacs, One Seventy Eight only) upon M/s Beltek Canadian Water Ltd., A-16 Hosiery Complex Phase-II. Noida under Section 76 9f the Finance Act, 1994." 5. Being aggrieved, the assessee filed appeal before the First Appellate Authority and the learned Commissioner (Appeals) confirmed the order of recovery of service tax for the period from April 2012 to June 2012 amounting to Rs.6,56,200/- under Section 73 of the Act along with interest. He set aside the confirmation of demand and imposition of penalty for the period from 01.07.2012 to 31.03.2013 as the Appellant had paid the tax on their own ascertainment. He imposed penalty of Rs. 3,28,100/- under Section 76 of the Act since the demand is confirmed with interest and same is provided in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of NARMADA DRINKS (P) LTD. [2017 (5) G.S.T.L. 369 (Tri. - Del.)] held as follows "8. The appellant has manufactured aerated drinks with the brand name of coca cola, which is owned by M/s. Coca Cola. Since, the latter continues to supply the concentrate, which is used for manufacture of aerated product with the brand name of Coca Cola, any activity undertaken with the intention of promoting the brand name will also result in promotion of the sale of goods produced by the appellant. The Department has issued a Show Cause Notice and proceeded to confirm the demand of service tax on the basis of notice. During the course of audit of goods of accounts of the appellant; the appellant was found to have received certain amounts from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly, the appellant is not marketing or selling the concentrate as a brand name. The appellant's contention is that they are manufacturing the goods bearing the brand name and not the brand owners and therefore they cannot be charged service tax for marketing and promotion of sales of their own goods." 4.5 In case of Brindavan Bottlers Ltd [2019 (27) GSTL 354 (T-ALL)], Allahabad bench has observed as follows: "8. So far the next issue of the said appeal is concerned regarding reimbursement of advertisement and publicity and also the sales target incentives, it is explained by the Learned Counsel that such schemes - target schemes or incentive schemes are issued by the Coca-Cola Co. Ltd. of which the appellant is a franchisee bottler ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epsi, 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. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their product. It is well known that the bottlers receive concentrate from the brand owners such as M/s Coca Cola, manufacture aerated products there from and sell the same. Para 6.2 of the relevant show cause notice alleges that the amounts have been received from the brand owners to promote and market the brand name of such brand owners. One of the activities for which BAS is leviable is for Promotion or Marketing or Sale of Goods Produced or Service provided. The appellant has received concentrate from the brand owners but is not marketing or selling the concentrate itself. The appellant's contention is that they are manufacturing and selling the aerated water bearing the brand name and are not engaged in marketing or promotion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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