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2015 (6) TMI 586 - CESTAT NEW DELHI

2015 (6) TMI 586 - CESTAT NEW DELHI - 2015 (40) S.T.R. 352 (Tri. - Del.) - Intellectual Property service - payment received for royalty or mere profit making activity - good manufactured by the job worker on behalf of appellant - Revenue is of the view that M/s. Pilkhani is using the brand name and technical knowhow of the appellant and paying consideration in terms of royalty for use of brand name and technical knowhow of the brand owner - Held that:- Arrangement between the appellant and M/s. .....

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L was sold by or as per the direction of the appellant on profit /loss on account of the manufacturing and sale of IMFL is entirely on account of appellant who holds the property risk and reward of the product. M/s Pilkhani received consideration for undertaking the manufacture of job work done basis. In these circumstances, the appellant is not required to pay service tax at all.

As per the agreement between the parties, the risk of manufacture and sale lies with the appellant in res .....

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y, quantity and timely production, they are providing Franchise Service and/or IPR Service.

Appellant are the Brand Owner of IFML and M/s. Pilkhani is a job worker manufacturing IMFL on behalf of the appellant and the amount retained by the appellant is the business profit not liable to be taxed under the Finance Act, 1994 under the category of Intellectual Property service. Therefore on merits, we hold that appellant are not required to pay Service Tax under the category of Intellect .....

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onfirming the demand of Service Tax under the category of Intellectual Property service along with interest and penalties under section 77 and 78 of the finance Act, 1994. 2. The brief facts of the case are that the appellant is owner of brand name Officers Choice . They are engaged in manufacture and sale of Indian Made Foreign Liquor (IMFL). As the appellant was not having manufacturing facility to produce IMFL in the State of Uttar Pradesh , they entered into agreement dated 19.8.2000 with M/ .....

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llectual Property Service under Section 65(65A) of the Finance Act, 1994. Therefore, the show cause notice dated 12.2.2008 was issued by invoking extended period of limitation for the period 10.9.04 to 31.3.06 to demand Service Tax under the category of Intellectual Property service. The said show cause notice was adjudicated. The demand of service tax was confirmed against the appellant along with interest and penalties under section 77 and 78 of the Finance Act, were imposed. Aggrieved from th .....

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worker. It is further submitted that the issue of taxability of the service was clarified by the CBEC Circular No. 249/I/2006-CX.4 dated 27.10.2008 wherein it has been clarified that the agreement and activity undertaken by the appellant and M/s. Pilkhani, no service tax is payable by the appellant. Therefore, they are not liable to pay the service tax. He further, submits that the issue was again examined by the CBEC and it further clarified by Ministry of Finance letter vide F.No. 332/17/2009- .....

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ise, Meerut have no jurisdiction to issue show cause notice to the appellant as the appellant is not having any registered office in its jurisdiction as held by the Tribunal in the case of CCE, BBSR vs. Ores India (P) Ltd. [2008 (12) STR 513 (Tri-Kolkatta)]. They further submit that show cause notice have been issued by invoking the extended period of limitation. It is therefore stated that demand of service tax is barred by limitation as the issue whether the appellant is liable to pay service .....

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. Moreover, the applicant has suppressed the fact that they are receiving royalty from M/s. Pilkhani. In these circumstances, they are liable to pay Service Tax. Shri Jain also drew our attention to the CBEC circular dated 27.10.08 and submits that the appellant has given their license for use / have taken their brand name to M/s. Pilkhani, therefore the learned Commissioner has correctly confirmed the demand of Service Tax under the category of Intellectual Property services as per clause 2 of .....

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August,2000 and shall subject to the provisions for earlier determination /termination herein contained continue initially for a period of four years. After expiration of the initial terms of four year this agreement may be renewed for such further period upon such terms and conditions as may be mutually agreed upon. Provided, however that notice of intention to renew this agreement shall be received by the other party 3 months prior to the expiration of this Agreement. 3. Pilkhani will be free .....

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e within tolerances as given by BDA. 6. Quality Observer: (a) BDA will have absolute right to post its representatives at the Distillery for the following purposes.viz: i) To check the quality of spirit used in manufacturing of BDA s brands by Pilkhani so that the same is in line with the requirement of BDA. ii) To test and record the quality of such spirit, batch or batches quality of which is acceptable to BDA. iii) To check and approve the quality of finished product prior to dispatch. (b) If .....

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acceptable or not conforming to quality requirements by BDA s representatives then and in that event, BDA shall have the right to reject the same. (d) In case of any reason, whatsoever, the Representatives of BDA are not allowed to enter the distillery or perform the duties as specified above. BDA has the absolute authority to terminate this Agreement without any notice and Pilkhani will immediately cease to produce all IMFL brands authorized for production under this Agreement. (e) Notwithstand .....

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cts. However, in case of sale in Utter Pradesh bonded warehouse FL-2 license is required, the License Fee etc. will be borne by BDA Ltd. 11. The risk, property of interest in possession of land title or ownership to the IMFL shall pass from Pilkhani to the buyers only upon delivery of IMFL by Pilkhani to the common carrier from Pilkhani or from its Godown /Depot under operation, Pilkhani will not be responsible for any transit losses due to accident or any other reason the amount paid along with .....

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lkhani, BDA will obtain or cause to be obtained at its cost such excise permits /asses as may be necessary for the purpose of dispatches of IMFL products manufactured by Pilkhani under this agreement. 13. (a) Pilkhani shall obtain at its cost all raw materials required for the manufacture, distillation, blending and bottling of IMFL products, except such materials as agreed to be provided by BDA. (b) BDA assures a minimum lifting of 3 lakh cases of IMFL per annum for which Pilkhani has assured B .....

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ed by BDA, since BDA has permitted Pilkhani the user of the trade mark owned by it. 16. The trade marks brand names and the get up in which the IMFL products will be sold, supplied and delivered by Pilkhani to the buyers, shall be the sole property of BDA (which Pilkhani hereby acknowledges), and Pilkhani neither had nor has any right, title, or interest therein and shall not at any time claim any right whatsoever, to the ownership and / or the use of the labels, brand name, trade marks and / or .....

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hall be and shall always be deemed to be part of this Agreement. These prices are all inclusive ex-factory and include storage and other expenses including the cost of packing materials such as bottles, labels, seals, mono-cartone, corrugated boxes and wire netting expenses etc., incurred by Pilkhani including wastages thereon as per annexure. The prices are however, exclusive of sales tax, excise duty, bottling fees, export fees, octroi, transit insurance, excise escort charges and any other ta .....

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etween the parties. Such separate writing or writings relating to change of prices will without anything more to be done by and between the parties be and shall always be deemed to be a part of this agreement or a modification of this agreement from the date of such writing and this agreement shall stand modified from time to time to the extent of such writing or writings relating to change of prices only. The cost element referable to the packaging material will be reviewed and revised from tim .....

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marks or brand names at the rate and in the manner as provided in clause 25(a), such royalty may vary from time to time depending on market conditions. 25. (a) BDA will be responsible for obtaining orders, excise permits /passes etc. from parties to whom the IMFL products are to be sold directly be Pilkhani (referred to as Direct indentors). The indent for the purchase of IMFL products shall be placed on Pilkhani by such Direct indentors. Pilkhani, on the instructions of BDA will, after complet .....

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value of each product at the rate agreed from time to time in accordance with clauses 18 and 19 of this agreement by separate writing and the amounts representing the statutory dues such as Sales Tax, Excise duties, fees etc. will pay to BDA the balance amount (which represents royalty) due and payable to BDA within seven days from money being received in their accounts. However, BDA will not withdraw any amount as royalty or otherwise till the investment in the working capital of the Pilkhani i .....

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s of and dealers in all kinds of wines, spirits and liquor as also the goods set out in the Schedule A (hereinafter called the said trade mark ). B. The users have entered into a Manufacturing Agreement with the Proprietors dated 19th August, 2000 (hereinafter called the Manufacturing Agreement) whereunder the users will be undertaking the manufacture of contract products at the distillery as per the specification to be provided by the proprietors will be undertaking the sale of the contract pro .....

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as specified in the Manufacturing Agreement. From the tenor of the agreements, we find that the appellant is a brand owner of the IMFL and was having own arrangement with M/s.Pilkhani for manufacture of IMFL at their distillery as per the specification to be provided and will be undertaking the sale of the IMFL so manufactured. As the appellants were not having any manufacturing license, the appellant have allowed M/s. Pilkhani to manufacture as license holder and who can sell the same, therefor .....

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price payable to the Government were to be paid by the manufacturer to the Government directly and balance amount shall be given to the appellant who shall not withdraw any amount till release of the cost of the job work expenses incurred by M/s. Pilkhani. From these facts and from the tenor of the agreement, it is clear that the appellants are brand owners and engaged in the activity of manufacture of alcoholic beverage. The cost of raw material and other expenses were reimbursed to M/s. Pilkh .....

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Pilkhani for their use. Same view has been taken by the Hon ble Apex Court in the case of Panipat Woollen and General Mills Co. Ltd. [1976 3 SCR 186] wherein the Hon ble Apex Court has held as under:- It is well settled that the Court in order to construe an agreement has to look to the substance or the essence of it rather than to its form. A party cannot escape the consequences of law merely by describing an agreement in a particular form though in essence and in substance it may be a differe .....

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ank or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of the relevant transactional documents. Only such scrutiny and analysis would ensure rational classification of the transaction. Further, we find that the appellant has relied on CBEC Circular dated 27.10.2008 wherein the issue has been examined. For better appreciation of the issue, the said .....

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tion of alcoholic beverages) was placed on the official website for eliciting responses from the stakeholders. The responses received from various stakeholders were carefully examined. It was noticed that in certain cases such alcoholic beverages are produced by the distillers who also own the brand names affixed on such beverages. Such beverages are cleared on payment of State Excise Duty and there are no known disputes as regards the liability to pay service tax. In other cases, the owners of .....

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property rights over such brand names. The Licences (who holds the licence by the State government to manufacture such alcoholic beverages) manufactures alcoholic beverages under authority to use such brand name granted by the BO. The BO may also provide technical staff/assistance to maintain required quality. The alcoholic beverages, so manufactured are directly sold (after paying State excise duty) by licencee/manufacturer. Property, risk and reward of the products so manufactured rest with t .....

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ter holding the required State Licences for manufacture of the alcoholic beverages. In trade, such licencees/ manufacturers are called the Contract Bottling Units or CBUs. The cost of raw materials (and in some cases, even capital goods) and other expenses are either paid by the BO or reimbursed by the BO. Statutory levies (i.e. State Excise Duty) are also reimbursed to the CBU by the BO. The alcoholic beverages are sold by or as per the directions of the BO and profit or loss on account of manu .....

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ny service provided or to be provided in relation to production or processing of goods for, or on behalf of, the client . This taxable service however, by definition excludes any activity that amounts to manufacture within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944 from its ambit. The issue in dispute is whether such activity would be hit by the exclusion clause mentioned above. 3.2 In the draft circular dated November, 2006, it was mentioned that as alcoholic beverag .....

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in the instant case for the following reasons : (a) Plain reading of Section 3 of the Central Excise Act, 1944 shows that for levy and collection of central excise duty, the following conditions must be satisfied; The process undertaken must amount to manufacture as defined under Section 2(f); and The result of such process should be emergence of excisable goods, which as per Section 2(d) are the goods specified in the First and the Second schedule of the Central Excise Tariff Act, 1985 as bein .....

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may amount to manufacture under Section 2(f) but it may not result in emergence of an excisable product. If that be so, then the exclusion clause under BAS, which refers only to the activity amounting to manufacture within the meaning of Section 2(f), would still apply to such processes, whether or not the resultant product are excisable goods. Such is the case of production of alcoholic beverages, which qualifies to be a process amounting to manufacture within the meaning of Section 2(f), when .....

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is as if the said definition is physically written into the borrowing Act without any reference to the context of such definition in the Act from which it is being borrowed. It is the words of that definition, which is imported into the borrowing Act and not the scope of the first Act and the context in which such definition is used in the first Act. Admittedly the scope of the two Acts would be distinct and if the definition is borrowed from the first Act into the second Act having different s .....

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s of manufacture of alcoholic beverage under the contract bottling arrangement as described above then such activity would not fall under the taxable service, namely the BAS. However, in case the activity undertaken by the CBU falls short of the definition of manufacture (such as activity of packing or labelling alone) then such activity would fall within its ambit and would be charged to service tax. 8. On going through the above circular, we find that the arrangement between the appellant and .....

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e IMFL was sold by or as per the direction of the appellant on profit /loss on account of the manufacturing and sale of IMFL is entirely on account of appellant who holds the property risk and reward of the product. M/s Pilkhani received consideration for undertaking the manufacture of job work done basis. In these circumstances, the appellant is not required to pay service tax at all. 9. The arrangement was further examined by CBEC and by TRU letter dated 30.10.2009 again it has been clarified .....

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ate excise duty and VAT paid to State Government 7) Surplus/ profit retained by BO It was their plea that if the entire amount charged by CBU is subject to service tax, it would amount to charging tax on goods. The CIABC, therefore, requested that the service tax should be charged on the amount representing the charges for service alone. Accepting their plea, Notification No. 39/2009-ST dated 23.9.2009 was issued wherein exemption from service tax has been provided on the value which represents .....

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larified that - (a) Service tax would be payable on the bottling/job charges, distribution costs and other reimbursible. (b) So far as inputs i.e. raw materials and packing materials are concerned, one of the conditions of exemption Notification No. 39/2009-S.T. is that there should be documentary proof specifically indicating the value of these inputs. Therefore, service tax on the value of raw materials and packaging materials would be exempt only when such charges are specifically mentioned i .....

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rgeable to service tax. 10. On going through the said TRU Circular, we find that the arrangement is executed by the parties is as per para 2 of the said circular and in that circular it has been clarified that the surplus and profit earned by the manufacturing company or brand owner is not chargeable to service tax. 11. This issue again came up before this Tribunal in the case of Diago India Pvt. Ltd. (supra) wherein this Tribunal after examining the agreement has observed as under: 9. The terms .....

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d there is no representational right given to the bottling unit for the brand name. The commercial interest of the bottling unit is to earn the consideration for bottling or manufacturing the alcoholic beverages. The appellant uses the bottling units for producing the said beverages in their brand names for sale in profit. The said activity has been dealt with by the CBEC in their Circular No. 332/17/09 TRU dated 30.10.2009. 10. After going through the Board s Circular dated 30.10.2009 deals wit .....

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as observed as under: 6. After taking through the agreements, the appellant argues that FIPL is only a Contract Bottling Unit (CBU), manufacturing and supplying beer as per specifications and formulation including freight and escort to the appellant. Further, the sale is also being made to the appellant or to its Indenters as per the direction of the appellant. Thus, the appellant has neither provided any Franchise Service nor any Intellectual Property Right Service to FIPL and thus, the impugne .....

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cencee (who holds the licence by the State government to manufacture such alcoholic beverages) manufactures alcoholic beverages under authority to use such brand name granted by the BO. The BO may also provide technical staff/assistance to maintain required quality. The alcoholic beverages, so manufactured are directly sold (after paying State excise duty) by licencee/manufacturer. Property, risk and reward of the products so manufactured rest with the licencee/manufacturer and not with the BO, .....

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ed State Licenses for manufacture of the alcoholic beverages. In trade, such licensees/manufacturers arc called the Contract Bottling Units or CBUs. The cost of raw materials (and in some cases, even capital goods) and other expenses are either paid by the BO or reimbursed by the BO. Statutory levies (i.e. State Excise Duty) are also reimbursed to the CBU by the BO. The alcoholic beverages are sold by or as per the directions of the BO and profit or loss on account of manufacturing and sale of a .....

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to be provided in relation to production or processing of goods for, or on behalf of, the client . This taxable service however, by definition excludes any activity that amounts to manufacture within the meaning of clause (f) of section 2 of the Central Excise Act, 1944 from its ambit. The issue in dispute is whether such activity would be hit by the exclusion clause mentioned above. 6.3 On examining the scope of manufacture in para 3.3 of the Circular, it is revealed that if the CBU undertakes .....

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ed by CBE&C vide F. No. 332/17/2009-TRU, dated 30-10-2009 on value of taxable services under the category of Business Auxiliary Services for manufacture of liquor on job-work basis. It is mentioned in the Circular that Service Tax has been imposed by Finance (No. 2) Act, 2009 under Business Auxiliary Services to include the manufacture of alcoholic beverages on job-work basis. In this connection, in the earlier Notification No. 39/2009-S.T., dated 23-9-2009, it was clarified that the Governm .....

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ovisions of Cenvat Credit Rules, 2004; there is documentary proof specifically indicating the value of such inputs, and where the service provider also manufactures or processes alcoholic beverages, on his or her own account or in a manner or under an arrangement other than as mentioned aforesaid, he or she shall maintain separate accounts of receipt, production, inventory, dispatches of goods as well as financial transactions relating thereto. 6.5 Further, the Circular dated 30-10-2009 clarifie .....

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invoice raised/documents maintained by the CBU. (c) As regards the statutory levies, namely, excise duty/VAT, they do not present any consideration for rendering the service. Whether such amount is paid by BO or by CBU, they have no nexus with the provision of service. As such, these levies will not be included for charging service tax. (d) Similarly, the surplus/profit earned by the BO being in the nature of business profit (which falls within the purview of direct taxes), will not be chargeabl .....

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13-TIOL-790-CESTAT- MUM = 2013 (32) S.T.R. 254 (Tri.-Bom.) where in a similar arrangement between the parties, it was held that Brand Owner is not required to pay any Service Tax under the category of Franchise Service taking the notice of clarification vide Board s Circular dated 30-10-2009. 6.7 The appellant also drew our attention to the distinction between the user agreement, licensed user agreement, registered user agreement and a manufacturing agreement. As per the book of P. Narayanan, Si .....

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mark should be sold to the owner of the mark. The manufacturer is not given the right to sell the goods on his own. In such an agreement the owner of the trade mark is the actual user of the mark in a trade mark sense and obviously the benefit of such user goes to him. The name of the manufacturer may or may not appear on the labels. It would be advisable not to mention the name of the manufacturer on the goods or on the labels or in any trade literature. This may not be possible in the case of .....

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ly after making an application for registration of the mark. 6.8 Thus, the appellant vehemently argues that that neither the provisions of Franchise Service are attracted nor the provisions of Intellectual Property Right are attracted. 7. The learned Addl. Commissioner (AR) appearing for the Revenue supports the Order-in-Original and the appellate order. Further, referring to the various clauses of the contract particular clause 2.1 and 3.2 where it is provided that local license fee/tax to be i .....

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relation to the quality of Skol Beer or packaging to Skol Beer manufactured and bottled by FIPL, FIPL, at its cost, shall arrange to collect such stocks and drain the same in the presence of Skol representative. In any event, FIPL shall indemnify Skol against all claims, proceedings, losses, damages, charges, expenses etc., if any, which may be made against or suffered by Skol with respect to the Skol Beer manufactured by FIPL. Further, FIPL shall also be liable to bear all costs, claims or loss .....

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red the rival submissions, we find that as per the agreement between the parties, the risk of manufacture and sale lies with the appellant in respect of the Foster Brand beer got manufactured by it from FIPL. It is evident from the contract that FIPL is only responsible for bottling, packing and dispatch as per the specification, terms, formula etc. as laid down by the appellant. Further, FIPL is bound to charge the price from the notified Indenter of the appellant as fixed by the appellant. Onl .....

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or, whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved] 48. franchisor any person who enters in to franchise with a franchisee and includes any associates of franchisor or a person designated by franchisor to enter into franchise on his behalf and the term franchisee shall be construed accordingly. From the aforementioned definitions, it is crystal clear that in the facts and circumstances, no services have been provided by the appel .....

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