TMI Blog2016 (6) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the appellants. Full sale proceeds are received by the appellants and the CBUs are paid amount as per the pre fixed rates. It is relevant to note here that after the amendment carried out w.e.f. 01.10.2009 in the definition of Business Auxiliary Services the CBUs are paying service tax under the said category. This will shows that it is the CBUs who are providing services to appellant not the other way around. It cannot be said that the appellants are promoting the business of bottlers. Therefore, by considering the applicability of Boards circular dated 27.10.2008, the various decided case and also the tax liability on CBUs introduced with effect from 01.09.2009 under Business Auxiliary Services category, it is clear that the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax covered the period from July 2003 to March 2012. The demands were adjudicated and service tax of various amounts were confirmed against the appellant along with imposition of penalty under various sections of Finance Act, 1994. 3. The Ld. Counsel for the appellant submitted that the appellants have entered into contracts with various distilleries and these contracts are all substantially similar in nature. For reference he relied on an agreement dated 12.04.2004 entered by the appellant with Gemini Distillery (Goa) Pvt. Ltd. The arguments of the Ld. Counsel for the appellant can be summarized as below:- a) As can be seen from the terms of the agreements there is no service rendered by the appellants to the CBUs. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn brands and make business profit by getting that manufactured by the bottlers and marketing the same. 4. The Ld. AR opposed the contention of the appellants. He reiterated the findings in the impugned order and stated that the case laws relied upon are dealing with different services and not the tax liability under Business Auxiliary Services. 5. We have heard both the sides and examined the appeal records. The point of dispute is whether or not the appellant have provided taxable services to the bottling units as confirmed by the lower authorities. We have perused the terms of one of the sample agreements referred to above. Among other things, we have noticed that the appellant are owners of various brands of IMFL who entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract bottling arrangement such activity would not fall under the taxable services namely Business Auxiliary Services. It was further clarified that in case the activity undertaken by the CBU falls short to the definition of manufacture (such activity of packing or labeling alone) then such activity would fall within its ambit would be chargeable to service tax. We find that the impugned order though reproduced various clauses of the agreement and Boards clarification dated 27.10.2008, the conclusion was drawn that the said circular is not applicable to the appellants case as contract bottling unit are not job workers of the appellant. 7. We have carefully gone through the reasoning given by the lower authorities. He found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability under different category. In BDA Pvt. Ltd. (Supra) the Tribunal held that the Brand owners get the liquor manufactured by the bottlers, as job workers on their behalf. The amount retained by the brand owners is the business profit not liable to be taxed under the Finance Act, 1994 under the category of IPR. This decision was confirmed by the Hon ble Supreme Court vide order dated 30.11.2015 in C.A. No. 37295 of 2015. In Diageo India Pvt. Ltd. (Supra) and Skol Breweries Ltd. (Supra) for the similar agreements demand was raised under the category of franchise services. The Tribunal after examining the agreements concluded that the brand owners are not providing franchisee services or the IPR services to the CBUs. Though in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
