TMI Blog2017 (3) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, we conclude that it is likely to be under “Promotion or marketing or sale of goods produced or service provided by the client”; we note that no investigation has been undertaken by Revenue into the reasons for which appellants have received the payments. Hence, it is not very clear why the appellant has received the said amounts from M/s Coca cola When we look at the clause (i) the definition of the BAS, which covers promotion or marketing or sale of goods produced or service provided, we fail to see how the promotion of the brand name can be brought under the above clause. A new service stands introduced with effect from 1.07.2010, which covered specifically “Brand Promotion Service” - Even if a view is taken that the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and Publicity expenses . 2. Department took the view that these amounts were received by the appellant towards expenditure incurred on advertisement and brand promotion of Coca-Cola. The Show Cause Notice dated 7.4.2011 was issued, which was followed by the confirmation of demand in the impugned order under the category of Business Auxiliary Service under Section (65)(105)(zzb) of the Act. Aggrieved by the impugned order, the present appeal has been filed. 3. With the above background, we heard Shri J.K. Mittal, ld. Advocate appearing for the appellant as well as Dr. Neha Garg appearing for the Revenue. 4. The appellant challenged impugned order mainly on the following grounds: i. The SCN categorically states that the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand name came into existence from 1.7.2010; the activity carried out by the appellant would be very much covered under Business Auxiliary Services which came to be included in the statue for much prior date. The appellant s has received certain amounts from M/s Coca-Cola in the books described as incentive for achieving certain level of sales which are clearly in the nature of sales promotion as covered within the definition of BAS. Accordingly, she prayed that the impugned order may be upheld. 7. Heard both sides and perused the records. 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 continuous to supply the concentrate, which is used for ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cause Notice, in Para 6.2, has stated that the amounts have been received from the brand owners to promote and market the brands of the brand owners. 10. When we look at the clause (i) the definition of the BAS, which covers promotion or marketing or sale of goods produced or service provided, we fail to see how the promotion of the brand name can be brought under the above clause. The appellant has received concentrate from M/s Coca Cola. Obviously, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken that the service rendered by the appellant is covered under the new service w.e.f. 01.07.2010, the same cannot be charged to service tax under BAS for the earlier period. This view has been settled through various decisions of the High Courts and the Tribunal in the case of Sourav Ganguly vs. Union of India 2016 (43) S.T.R. 482 (cal.) . The Hon ble High Court at Calcutta has dealt with an identical fact, the Hon ble High Court held as follows: 67. I am inclined to agree with the submission of ld. Counsel for the petitioner that since by amendment of the Finance Act, 1994, a new taxable service category of Brand Promotion was introduced with effect from 1 July, 2010, the logical corollary and inevitable inference is that s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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