TMI Blog2020 (2) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of the goods in term of Central Excise Act, 1944 has occurred. The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence there are no merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only transfer to use . There are no merits in the impugned order - appeal allowed - decided in favor of appellant. The issue involved in the present appeal is squarely covered by the decisions of the tribunal in case of Superior Drinks Pvt Ltd [ 2019 (6) TMI 272 CESTAT Mumbai ]. This decision in turn follows the decisions rendered by the Delhi Bench in case of Narmada Drinks (P) Ltd reported at 2017 (3) TMI 1106 - CESTAT NEW DELHI and also in case of Narmada Drinks (P) Ltd reported at [ 2018 (6) TMI 899 - CESTAT NEW DELHI ]. Similar view has been expressed by the Allahabad Bench in case of Brindavan Bottlers Ltd [ 2019 (3) TMI 1428 - CESTAT ALLAHABAD ] and Mumbai Bench in case of SMV Beverages Pvt Ltd [ 2017 (3) TMI 942 - CESTAT MUMBAI ]. It was held in these decisions that - S.T. Appeal Nos. 750 of 2012; 5645 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mritsar Crown Caps Ltd (ACCPL), a 100% subsidiary of the Appellant. ACCPL has entered into Bottlers Agreement with TCCC wherein, it has been granted the right to prepare, package, distribute and sell beverage. ACCPL purchases concentrate required for manufacture of the finished products from Coca Cola India Pvt Ltd (CCIPL). 2.3 As per the agreement, the appellants are required to take steps for advertising, marketing and promoting the sale of beverages. In view of the fact that maximum price of Aerated Beverages is fixed by TCCC, CCIPL provides incidence support to the appellants and contributes financially in the marketing and sales promotion program undertaken by the appellants. 2.4 Appellants had claimed the expenses towards (i) Incidence Support (ii) Pet 2 Ltr Support (iii) Kinley Water Support (iv) Marketing Claim (v) Red element Claim (vi) Parivartan Support (vii) UTC Scheme (viii) Modern Trade Support (ix) Lakshay Reward (x) New Product Launch Support (xi) Festival Gift Packs (xii) Limca Display (xiii) Chandi Ki Bottle Scheme (xiv) Limca Book of Records (xv) Tiranga Display Scheme (xvi) Chiller Visibility (xvii) MMNF 400 ml Support (xviii) Pet Soda Support (xix) Fanta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (51) STR 145 (T-Mum)] The decision of the Hon ble Bombay High Court in case of Coca Cola India Pvt Ltd [2009 (15) STR 657 (Bom)] holding that that advertisement services were input services for the assessee and relied upon by the Commissioner in the impugned order is not applicable in the present case. Promotion of the brand was not covered under the Business Auxiliary Service prior to 01.07.2010 as has been held in the following decisions: Jetlite (India) Ltd [2011 (21) STR 119 (T-Del)] Sourav Ganguly [2016 (43) STR 482 (Cal)] Siya Saran [2014 (36) STR 641 (T-Del)] Also for the period post 01.07.2010 no demand has been made by the services provided under the category of promotion of brand hence the same is also not tenable as has been held in the case of Hindustan Aeronautics Ltd [2019 (370) ELT 699 (T-Bang)] 3.3 Arguing for the Revenue, the learned Authorized Representative submits that - The conclusions drawn by the Mumbai bench in case of Superior Drinks [2019 (8) TMI 272 CESTAT Mumbai} at para 5.2 to 5.4 are not correct in as much as that it holds that there is contract between Coca Cola USA and the bottler but not bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bottler agreement, trade mark is different from beverages. Clause fro Trade Mark are set in Portion III and that for preparation and packaging of beverages are in portion IV. Different clauses of the agreement restrict sale and advertising/sales promotion activities of Beverage also. Decisions of SMV Beverages Pvt Ltd relied upon by the Appellant cannot be relied as the payment of excise duty cannot be criteria for sale. Sale/ Transfer of Concentrate is not absolute but is conditional. Bottler cannot have sold the concentrate further as per the clause 3 of the agreement. He has very limited rights to use [Clause 18, 19, 20 27] In case of ending of contract the concentrate is to be returned. It is only transfer on payment of some amount. Even the beverage manufactured has to be stored/ transferred/ sold as per wishes of Coca Cola. All these conditions reflect that concentrate is only transferred or use and not sold to the bottler, it never becomes the product of bottler. 4.1 We have considered the impugned orders along with the submissions made in the appeals, during the course of arguments and in the written submissions filed. 4.2 We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter V of Finance Act, 1994 as per Section 65 (121) ibid. The relevant provisions are reproduced below: Section 2(h) of Central Excise Act, 1944 sale and purchase , with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration; Section 65 (121) of Finance Act, 1994: words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. Thus in terms of Section 2(h) of Central Excise act, 1944 the transfer of possession for a consideration in normal course of trade would signify the sale. CESTAT Bangalore Bench in case of Nestle India Ltd [2009 (248) ELT 737 (T-Bang)] has held as follows: 3 As per the definition of Sale or Purchase under Section 2(h) of Central Excise Act, 1944 means . . In the instant case, the sale is transfer of ownership of goods from M/s Nestle India Ltd to Indian Army/ ITBP. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer/ supplier. In our view such an interpretation is neither logical or rational. Both input suppliers and the finished product manufacturer are independent business entity acting in the interest of their business. The issue before the High Court was vis a vis the admissibility of CENVAT Credit in respect of Advertisement services availed by the Coca Cola India as is evident from para 2 3 of order reproduced below: 2 . The main question which is therefore, required to be considered, in the present Appeal, is whether the Appellants, who are manufacturers of non-alcoholic beverage bases (concentrates) are eligible to avail credit of the service-tax paid on advertising services, sales promotion, market research and the like availed by them and utilize such credit towards payment of excise duty on the concentrate. As now judicially recognized, Service tax is VAT which in turn is destination based consumption tax in a sense that it is on commercial activities and is not a charge on the business but on the consumer. Just as excise duty is a tax on value addition on goods. Service tax is on the value addition by rendition of service. See All India Federation of Tax Practit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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