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2019 (4) TMI 1808 - AT - Service TaxClassification of services - Business Auxiliary Service or Franchisee Service? - Indian Made Foreign Liquor (IMFL) and alcoholic beverages - Assessee is responsible for marketing the products, makes production plan and procures orders for bottler and sale proceeds are deposited in a joint bank account - HELD THAT:- The matter is no longer res integra as the demand of service tax under the category of Franchisee Service as the same has been settled in the case of M/S DIAGEO INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-II [2013 (7) TMI 266 - CESTAT MUMBAI] where it was held that for the services received prior to 18.04.2006, the appellants are not liable to pay service tax. Since the facts of this matter are similar to the one decided by the above mentioned decision of this Tribunal, after follow the same, we hold that the demand under category of ‘Franchisee Service’ confirmed by the adjudicating authority by the impugned order-inoriginal is not legally sustainable; therefore, we set aside the same. Demand of service tax amounting to ₹ 14,75,497/- - duty paying invoices - demand only on the two grounds that some of the invoices on which the cenvat credit was availed, was in the name of one of the branch of the appellant which was not registered with the Service Tax department or where the invoices were in the name of the Seagram Manufacturing Pvt Ltd. - HELD THAT:- It is a matter of record that Seagram Manufacturing Pvt Ltd has been merged with the appellant’s firm and therefore, on the invoices which are in the name of the Seagram Manufacturing Pvt Ltd, legally cenvat credit of the service tax on such invoices cannot be denied to the appellant as both the entities namely Seagram Manufacturing Pvt Ltd and the appellant have merged together. We find that the Cenvat Credit Rules, 2004 do not provide that input service needs to be received in the premises of output service provider, therefore, the cenvat credit cannot be denied on this ground also. Thus, there is no violation of the Cenvat Credit Rules - appeal allowed - decided in favor of appellant.
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