TMI Blog2015 (12) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2012, the figures for 2011-12 have been taken to be 10 times those for 2010-11 under the “best judgment assessment” without any basis / reason which almost smacks of outright mala fide and the adjudicating authority blindly adopted those figures under “best judgment assessment” without even a whisper as to how such a quantum jump (tenfold) in the assessable value was justifiable as 'best judgement assessment' under Section 72 ibid Appellant made elaborate arguments in its written submissions that the service received by it did not satisfy the definition of franchise service under Section 65 (105) (zze) ibid, but the adjudicating authority summarily states (without any analysis) that its contentions do not hold ground. Indeed, as brought out hereinabove, perusal of paragraphs 36 to 41 of the impugned order quoted above makes it so amply clear that the order fatally suffers from lack of analysis/discussion regarding the contentions and arguments of the appellant and makes a mockery of the quasi-judicial process in-as-much-as it is not merely non-speaking, but also absurd in parts. In the absence of analysis/reasoning with reference to the contentions of the appellant, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Service and Scientific and Technical Consultancy Service . The appellant was manufacturing beer under the Trademarks owned by M/s. Carlsberg Breweries A/S, Denmark. The appellant entered into the India Licence Agreement (ILA) dated 07.12.2006 with Carlsberg Denmark and has been manufacturing beer under trademarks Carlsberg , Tuborg and Palone owned by Carlsberg Denmark under the ILA and addendum to the ILA dated 25.09.2008. At the time of entering into the ILA, the trademarks, Carlsberg and Tuborg were already registered in India vide Registration No.139539 and 127793 respectively. The trademark Palone was registered in India w.e.f. 18.04.2007 vide the trademark registration certificate dated 27.02.2012. The aforesaid demands were confirmed on the amount of royalty paid to M/s. Carlsberg Denmark on which the appellant did not discharge service tax liability. When the case was taken up for stay application during the hearing, both sides agreed that the appeal itself could be disposed of. Accordingly, we waive the requirement of pre-deposit and proceed to dispose of the appeal. 3. Ld. advocate for the appellant essentially contended that (i) The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked in the present case which will make substantial part of demand time barred. (ii) The appellant made elaborate submissions on each of the aforesaid points which are not being repeated here. It also demonstrated that similar submissions were made before the adjudicating officer too. It also claimed to have provided the actual figures to the Commissioner but the Commissioner resorted to best judgement assessment in respect of demand confirmed under franchise service for the periods 2010-11 and 2011-12. Under the best judgement assessment, the figure for 2010-11 was taken to be double of the preceding year and the figures for 2011-12 was taken as 10 times that for 2010-11 without giving any basis. (iii) The adjudicating authority did not give any finding in respect of any of the submissions made by the appellant and the demand was confirmed by making baseless observations in para-36, 38 and 40 of the impugned order. Thus the order is non-speaking and hence unsustainable. 4. Ld. Departmental Representative essentially reiterated the contents of the impugned order. 5. We have considered the contentions of both sides and perused the records. In view of the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Franchisee Service , defined under Section 65 (105) (zze) ibid, effective from 01.07.2003 as amended and the contentions of the noticee that M/s. Carlsberg Denmark was not providing Franchisee service to the Noticee under ILA hence demand is not sustainable, is not correct and does not hold ground. Further, it is observed that M/s. Carlsberg Breweries A/S, Denmark and M/s. CIPL has mutually agreed to waive-off their respective legal rtights of Royalty and Above-the-Line activity marketing contribution claim, which is equal to the Royalty and the consideration is an act of forbearance, or a promise thereof, which is offered by one party to an agreement and accepted by other, as inducement to the other s act or promise, and therefore it is clear, that M/s. CIPL is liable for payment of Service Tax under Section 67(ii) of Finance Act, 1994 on the amount of Royalty paid in the form of consideration. 37. I therefore hold that M/s. CIPL is liable to pay service tax on amount of royalty paid to M/s. Carlsberg breweries A/s, Denmark in terms of notification no.11/2006-ST dt.19.04.2006, and it is also observed that M/s. CIPL failed to determine the gross value of service tax in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Amount ₹ 30,74,516/- 4. D-III/ST/R-II/SCN/ Carlsberg/187/2010/3076 dated 23.08.2012 - ₹ 35,76,049/- 5. D-III/ST/R-II/SCN/ Carlsberg/187/2010/4649 dated 18.10.2012 - Amount ₹ 4,51,66,650/-. On similar issue is being confirmed on same lines as per CBEC Circular No.752/68/2003-CX dated 1.10.2003, and M/s. CIPL is liable to pay interest and penalty in the similar ratio as per order in the instant case, along with service tax demanded respectively in each case. From the perusal of the aforesaid paragraphs, it becomes loud and clear that none of the contentions of the appellant have been analysed in the impugned order. Even the contentions regarding non-invocability of the extended period were brushed aside rather summarily as is evident from para-38 of the impugned order quoted above. We note that the adjudicating authority has observed that the appellant deliberately tried to suppress the facts from the Department and then adds that M/s. Carlsberg India Pvt. Ltd. wilfully suppressed all the material facts regarding nature of service provided by them in respect of Intellectual Property Services other than Copyright and the gross amount recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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