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TMI Blog2025 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax in question would fall. It is a settled principle of law that the Adjudicating Authority cannot go beyond the scope of SCN which has been laid down by the Hon'ble Supreme Court, inter alia, in cases of COMMISSIONER OF CUSTOMS, MUMBAI VERSUS TOYO ENGINEERING INDIA LIMITED [ 2006 (8) TMI 184 - SUPREME COURT ], COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS M/S BALLARPUR INDUSTRIES LTD [ 2007 (8) TMI 10 - SUPREME COURT ] it has been held that the SCN is the foundation of the case against the assesse and it is not open for the Adjudicating Authority to confirm the demand by travelling beyond the scope of the SCN. Therefore, in the light of the above, the Impugned Order is liable to be set aside. Whether there is any element of service, particularly in the nature of Business Auxiliary Services as defined under Section 65(19) of the Finance Act, 1994, involved in receipt of reimbursement amount received from M/s. Coca Cola India Pvt Ltd for joint promotional activities conducted by the Appellant on cost sharing basis with CCIPL, with an objective of promotion of sale of beverages manufactured by the Appellant? - HELD THAT:- The Appellant has undertaken promotion, marketing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. Therefore, the question of invocation of extended period of limitation does not arise at all. The impugned order cannot be sustained - appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Jitendra Motwani, Advocate Ms. Kirti Bhoite, Advocate for the Appellant Shri Manish Raj, Authorized Representative for the Respondent ORDER P. K. CHOUDHARY : Present appeal has been filed by the Appellant assailing the Order-In-Original No.11-COMMR-M-II-2013, dated -31/12/2013 passed by Commissioner, Customs, Central Excise Service Tax, Meerut-II wherein the entire demand has been confirmed alongwith interest and penalty based on the following findings:- The Appellant undertook activities of advertisement and sale promotion of concentrate/flavor belonging to Coca Cola India Pvt. Ltd. and received support price in consideration and the said activities fall in the category of service classified under clause (i) of the Business Auxiliary Service as defined under Section 65(19) of the Finance Act 1994. 2. The facts of the case in brief are that the Appellant is a private limited company, inter-alia engaged in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing of the beverage. Concentrate/beverage base is an industry product whereas the beverage is the product used by ultimate buyer/consumer. 7. The demand for concentrate manufactured by CCIPL is inextricably linked with the sale of beverages sold by the Appellant and other bottlers. Therefore, with a view to promote sales of concentrate, CCIPL took the initiative and provided some financial benefits to the Appellants and other bottlers. This support is generally provided by CCIPL by way of following methods: a. Additional discount against certain underlying conditions: - Under this category, various discounts schemes were carried out jointly by the Appellant and the CCIPL such as price off schemes, freebies schemes, joint promotional campaigns. b. Purchase of beverages from the Appellant for free distribution in the market also known as sampling: - Under this category, CCIPL buy beverages from the Appellant for free distribution in the market. c. Contribution to the cost of point-of-sale material: - Under this category, the Appellant and CCIPL jointly purchased sale promotional material such as banners, billboards and other publicity or advertisement material. d. Joint camp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant may be dismissed being devoid of any merits. 12. Heard both the sides and perused the appeal records. 13. The issues before us are as under:- I. Whether the Respondent was right in extending the scope of the show cause notice by way of confirming the disputed demand under Business Auxiliary Service when evidentially the show cause notice has not demanded the Service Tax under any particular service head? II. Whether there is any element of service, particularly in the nature of Business Auxiliary Services as defined under Section 65(19) of the Finance Act, 1994 ( the Act ), involved in receipt of reimbursement amount received from M/s. Coca Cola India Pvt Ltd ( CCIPL ) for joint promotional activities conducted by the Appellant on cost sharing basis with CCIPL, with an objective of promotion of sale of beverages manufactured by the Appellant? III. Whether the Respondent is right in confirming the demand on the extended period of limitation? 14. With regards to the first issue, we find that the Impugned SCN demands Service Tax under Business Auxiliary Service. It has not even referred to any of the seven sub-clauses in Section 65 (19) as to under which sub-clause the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 (1) TMI 266 CESTAT Mumbai. (ii) TKM Global Logistics Limited vs. Commissioner of Service Tax, Kolkata [2024 (2) TMI 1307 CESTAT Calcutta]. 14.6 It is a settled principle of law that the Adjudicating Authority cannot go beyond the scope of SCN which has been laid down by the Hon'ble Supreme Court, inter alia, in cases of CC, Mumbai vs. Toyo Engineering India Ltd., 2006 (201) ELT 513 (SC), CCE, Nagpur vs. Ballarpur Industries Ltd., 2007 (215) ELT 489 (SC) and CCE vs. Gas Authority of India limited 2007-TIOL-250-SC it has been held that the SCN is the foundation of the case against the assesse and it is not open for the Adjudicating Authority to confirm the demand by travelling beyond the scope of the SCN. Therefore, in the light of the above, the Impugned Order is liable to be set aside. 15. With regards to the second issue we find that the Adjudicating authority has erroneously held that the Appellant has undertaken the sale promotion, advertising activity for the flavor concentrate of various brands of CCIPL more specifically falls under clause (i) to Section 65(19) of the Finance Act, 1994. The Respondent has erred in holding that Appellant has undertaken sales promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: - Section 73- Recovery of Service tax not levied or paid or short levied or short paid or erroneously refunded (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within eighteen months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words eighteen months , the words five years had been substituted. 16.1 the extended period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of service. Therefore, when the nature of service was not ascertainable by the Department while raising demand, the extended period of limitation is not applicable in the instant case. 16.7 It is a settled position in law that extended period of limitation is not invokable where the issue pertains to the interpretation of the law. Reliance in this regard is placed on the following judgments : - (i) Commissioner of Central Excise Customs Vs. Alicon Pharma P. Ltd., 2015 (322) E.L.T. 47 (Guj.) (ii) Marsha Pharma Pvt. Ltd. Vs. CCE, Vadodara, 2009 (248) E.L.T. 687 (Tri. - Ahmd.) (iii) Associated Pigments Ltd. Vs. Superintendent of Central Excise, 1993 (68) E.L.T. 514 (Cal.) (iv) Ispat Industries Ltd. Vs. CCE, 2006 (199) ELT 509 (Tri.-Mum) (v) NIRC Ltd. Vs. CCE, 2007 (209) ELT 22 (Tri.-Del.) (vi) Chemicals Fibres of India Ltd. Vs. CCE, 1988 (33) ELT 551 16.8 We find that the Appellant has duly recorded all the transaction in its books of accounts. The Appellant has maintained all the books of accounts as per the provision of law and regularly filed its ST-3 returns. Therefore, no suppression of facts can be held on the part of the Appellant. Reliance in this regard is placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein and Coca Cola are working on a principal-to-principal basis. The relevant extract of the said judgment is reproduced as follows: So for 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. Appellant on its own cannot issue any such scheme. Whatever schemes are floated by the Coca-Cola Company, the appellant is the implementing agency in their area of operation. Such expenses on actual basis for achieving the sales target, incentive or advertisement and publicity expenses reimbursed to the appellant by the Coca-Cola Company Ltd. on actual basis. Accordingly, there is no element of receipt of any found toward service. Further, the appellant is not a service provider to Coca-Cola Company Ltd., they are working on principal to principal basis. Accordingly following the precedent judgment of this Tribunal in the case of Narmada Drinks (P) Ltd. Vs Commissioner of Central Excise, Raipur 2017 (5) GSTL 369 (Tri.-Del.) we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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