9911796707
TMI Blog2017 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... artment for the payment of service tax under various taxable categories. The dispute in the present appeal is relating to their service tax liability on the consideration received as "pouring fees" from Pepsi, the soft drink company with whom they have a contractual arrangement for display and sale of various products of the client. 2. The brief facts of the case are that the appellant entered into an agreement with Pepsi Foods Limited on 02/04/2002 for promotion of products of the client in the multiplex run by the appellant. The agreement envisaged supply of various products alongwith dispensing equipments. The appellant agreed to install the dispensing equipments and to promote and sale products of the clients in various premises under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted that they have, exclusive arrangement for supply of beverages, with Pepsi and, as such, the pouring fees is to be considered as an amount received for not allowing other competing products to be displayed and sold in their premises. In other words, he contended that it should be considered as non-compete fees not liable to service tax. The learned Counsel also contested the demand for extended period referring to the terms of agreement which states that any service tax liability shall be in the account of Pepsi. As such, he pleaded that there is no malafide intend on the part of the appellant for not discharging service tax on pouring fees. There is a bonafide interpretation as understood by the appellant. Accordingly, the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir return under gross income. As such, the learned AR supported the findings of the Original Authority for demand invoking extended period and penalty. 5. We have heard both the sides and perused the appeal records. On the merits of the case, we note that the agreement itself simply states that Pepsi shall pay the appellant, pouring fees as per Schedule 5. The nature of such fee and the reason for such payment is not elaborated in the agreement. The appellant submits that it is nothing but an additional discount. We are not able to appreciate such argument in the absence of any specification to that effect in the agreement itself. In fact Clause 5 of the agreement clearly stipulates the price consideration and the discounts entitled, ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epsi. We find that pouring fees as received by the appellant cannot be considered as a discount for sale transaction or as a payment for non-compete reason as given by the appellant. The indication is that it is more in the nature of fee received for promotion of Pepsi products. As such, we find no merit in the appellant's plea regarding non-taxability of the said consideration received by them. 6. Regarding the plea of the appellant on the question of time bar and imposition of penalty, we find that the appellants were registered with the Department under taxable categories of BAS and other tax entries and the appellants did not disclose the receipt of consideration as 'pouring fees' in any of their returns. The facts remains that even on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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