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TMI Blog2015 (2) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... investments in their country liquor plant by increasing the sale of country liquor of "Pahili Dhar" brand. The copy of the said agreement, is annexed in paper book. The said agreement was replaced by another 'selling agency agreement' dated 01.01.2006 which is valid for a period of five years i.e. up to 31.12.2011. The copy of the said agreement is annexed in paper-book. As per the said agreements, the packing material, essence, etc. (required for manufacture/packing of the country liquor bearing "Pahili Dhar" brand of the Appellants ) was to be supplied by M/s Talreja Trade (HUF) and M/s Talreja Trade (HUF) was required to collect the sale proceeds from the customers (to whom the country liquor of "Pahili Dhar" brand is sold by the appellants (as suggested by him) and after deducting the price of the packing material, essence, etc. (supplied by him to the appellants) from the said sale proceeds, the remaining sale proceeds were to be handed over by him to the Appellants. Accordingly, during the period 2004 to 2007 the appellants manufactured country liquor of "Pahili Dhar" brand (out of their own raw material /packing material) and have sold the said branded country liquor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dropped but the demand of Rs. 40,88,516/- under the category of Intellectual Property Service' was confirmed along with equal amount of penalty under Section 78 and under Section 76 @ Rs. 200/- per day. Finding was recorded that M/s Talreja Trade pays, the 'minimum guaranteed margin' for sale of 50,000 bottles to the respondents. As per statement of Chief Accountant of the respondent this amount is 'royalty' for the use of brand name. During the personal hearing the respondent had submitted that the brand name "Pahili Dhar" as well as right to use the same remains entirely with it. Further the agreement clearly mentions that M/s Talreja Trade will not be entitled to the use of the brand name in any way. But the adjudicating authority referring to the agreement observed that only ownership of the brand name will rest with the respondent and M/s Talreja Trade is only utilizing the brand name for selling the 'country liquor' and paying royalty to the respondent. Further as the respondent stated it had no knowledge of its liability of the service tax of IPR service under the given facts, hence it was concluded that the respondent had suppressed the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed M/s Talreja Trade (HUF) to use the brand name "Pahili Dhar" (owned by the appellants) to sell the country liquor only if the country liquor would have been owned/manufactured by M/s Talreja Trade (HUF). However, it is not the case of the department, in fact in para 15(i) of show-cause cum demand notice itself it is clearly admitted that the country liquor (in respect of which the brand name "Pahili Dhar" is used) is manufactured and owned by the respondents. 6.5 The respondents manufactured country liquor out of their own raw material/ packing material under their own brand name and have sold the said branded country liquor to various customers suggested by M/s Talreja Trade (HUF) and have received the sale proceeds through M/s Talreja Trade (HUF). M/s Talreja Trade (HUF), before handing over the sale proceeds, has only deducted the price of packing material, etc, sold by him to the respondents and have handed over the remaining sale proceeds to the respondents. 6.6 The respondents submit that on harmonious reading of the agreements and the documents on record will reveal that the respondents are manufacturing their branded country liquor (out of their own raw material/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs in the Order-in-Original and prays for setting aside the impugned order, and allowing the appeal of Revenue. 8.1 We have considered the rival contentions and perused the documents on record. 8.2 For the packing material and essence supplied by M/s Talreja Trade to respondent, proper sale invoices have been issued charging Sales Tax/VAT as applicable. Respondents have also directly purchased packing material and essence from others. 8.3 For sale of 'country of liquor' by respondent, proper sale invoices have been issued. In the said sale invoices the name of M/s Talreja Trade (HUF)' is shown as 'selling agent'. 8.4 The sale of 'country liquor' have been declared in the returns filed with the Sales Tax Department by the respondent. 8.5 A query was raised by Revenue vide letter dated 07.04.2006 to appellant for (i) if it was engaged in manufacture of liquor on job basis or under its own brand name & (ii) if manufacturing under own brand name, it any Commission Agent / C & F Agent have been appointed. In its reply dated 28.04.2006 the respondent said that they have 'selling agent' and enclosed copy of the agreement. 8.6 Copy of licence issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f country liquor in consultation with M/s Talreja Trade. (iv) To deliver the finished goods to M/s Talreja Trade or its nominees after ensuing compliance with State Excise Law. B) Of M/s Talreja Trade (Agent) (i) Responsible to purchase or sell entire country liquor produced by appellant. (ii) To collect sale proceeds (iii) Ensure timely deposit of duties and taxes. (iv) Responsible for compliance of statutory regulations under Bombay Prohibition Act' and 'Maharashtra Country Liquor Rules'. (v) To keep interest free Security Deposit of Rs. 10 lakhs with respondent and also deposit a duly signed cheque for Rs. 25 lakhs (vi) To direct respondent on matters of production and bottling of C.L. (vii) To assist respondent in procuring raw materials for ensuring constant production. (viii) To supply packing materials including bottles on cost basis to respondent. (ix) To supply labor for production of liquor as well as handling of raw material and finished goods at own cost and comply with labor laws. (x) To pay process charges, as stipulated, per case of liquor. (xi) To monitor quality of production. (xii) The account between the parties to be settled as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l review and revision. h) Cost incurred by the Agent for supplying any raw materials or executing any of it's responsibilities under this Agreement, including in promotional schemes for marketing country liquor This shall in no way change or affect the aforesaid payments to Krishna i) Responsibility and liabilities, if any, arising from losses in excess of those allowable in production of spirit and country liquor and shortages in production process, breakages in supplies. This shall be exclusively borne by the Agent j) In the event, the Agent fails to sell 60,000 minimum cases of country liquor The Agent is liable to pay to Krishna Rs. 10.80 lakhs (Rupees Ten lakhs eighty thousand only) towards the guaranteed minimum margin which has been assured by the Agent to Krishna. This minimum guaranteed amount is subject to annual review and revision. In terms of this Agreement, the settlement of accounts between the Agent and Krishna shall be made in the manner as provided for hereunder. The Agent shall pay Krishna by demand draft or bankers pay order in favour of "Krishna Sahakari Sakhar Karkhana Ltd." payable at State Bank of India, Treasury Branch,. Karad, in sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liquor licencees in such manner so as not to hinder sale established by the Agent. 19. Failure of Krishna to meet it's obligations under this Agreement for supply of rectified spirit, essences, water, electricity to provide godown and storage facility stated hereinabove will entitle the Agent to a pro-rata reduction in payment of the guaranteed minimum margin for such period so long as the failure continues. The responsibility of machinery maintenance and procurement of spare parts lies with Agent. However, Krishna shall assist the agent for immediate procurement of spare parts. 26. This Agreement is a contract between two Principals and shall not be construed to be a Partnership or joint venture arrangement." 9. Thus, on appreciation of the clauses of agreement with the evidence on record, it is evident that no 'Intellectual Property Service' have been given by the respondent. The arrangement/agreement between the respondent and M/s Talreja Trade are for ensuring maximum production and sale of C.L. so as to maximise profits for both the parties. The minimum guarantee of profit per month given or assured by the agent to the respondent have been misunderstood as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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