TMI Blog2021 (9) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant: Ms.Priyanka Singla, Advocate Present for the Respondent: Shri M.S.Dhindsa Ms.Shivani, ARs ORDER All the appeals are disposed of by a common order. 2. The appellant is engaged in the distribution and sale of nonalcoholic beverages under the brand name of the Coca-Cola Company ( TCCC ) The appellant entered into a Bottlers Agreement with TCCC wherein the appellant has been authorized to use the trade mark in connection with preparation, packing, distribution and sale of beverages/aerated waters/mineral water in throughout a specified territory. The appellant purchases the concentrates, required for manufacture of final products, from Coca Cola Pvt.Ltd., authorized by TCCC for this purpose. As per the Bottl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the Ld.Counsel that the issue has been decided in case of Kandhari Beverages Pvt.Ltd. 5. Heard the parties. 6. We find that the said issue came up before this Tribunal in the case of Kandhari Beverages Pvt.Ltd. (supra), wherein this Tribunal has held as under:- 5. As the issue has been dealt by this Tribunal in appellant's own case for the earlier period, wherein this Tribunal observed as under: 4.2 We find that 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 (5) GSTL 369 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation in terms of bottlers agreement with the Coca Cola USA to promote Beverage and the Brand. 4.4. Undisputedly Appellant purchases the concentrate from the Coca Cola India. Learned Authorized Representative after referring to various terms of agreement argues stating that all these conditions reflect that concentrate is only transferred for use and not sold to the bottler. The fallacy in the arguments advanced is self evident if we refer to the definition of sale and purchase as per Section 2(h) of the Central Excise Act, 1944 as it existed then. The said definition has been made applicable to Chapter V of Finance Act, 1994 as per Section 65 (121) ibid. The relevant provisions are reproduced below: Section 2(h) of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus by stating that the goods namely concentrate was transferred for use by M/s Coca Cola India Pvt Ltd to the Appellant for consideration, a fact not in dispute, the sale of the goods in term of Central Excise Act, 1944 has occurred. The imposition of restrictions or conditions in respect of the 5 ST/51051/2015 usage and consumption of the concentrate, by the seller cannot alter that position. Hence we do not merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only transfer to use . 4.5 Thus the arguments advanced by the Authorized Representative in respect of non applicability of the decision of CESTAT in case of SMV Beverages, too need to be rejected. 4.6 In any ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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