TMI Blog2024 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... uced by their client. At best it can be said that they have participated in promotion of the brand name of 'Coca Cola', 'Pepsi' etc. Such activities cannot be brought under 'Promotion or Marketing or Sale of Goods Produced or Service Provided by the Client', appearing under 'Business Auxiliary Service'.' The impugned order is set aside to the extent of confirmation of demand and penalties by the learned Commissioner (Appeals). The appeal filed by the Appellant is allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate for the Appellant Shri A.K. Choudhary, Authorized Representative for the Respondent ORDER The present appeal has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Order-In-Original No.22/ST/ADC/Noida/2014-15 dated 23.12.2014 confirming the proposal of show cause notice holding as under:- ORDER 1. I hereby confirm the demand of service tax amounting to Rs. 12,00,356/- (Rupees Twelve Lacs. Three hundred and fifty six only) against M/s Beltek Canadian Water Ltd., A-16, Hosiery Complex Phase-II, Noida under Section 73 of the Finance Act, 1994. 2. I order to recover the above said confirmed dues along with appropriate rate of interest as provided under Section 75 of the Finance Act, 1994. 3. I impose penalty of Rs.10,000/- (Rupees ten thousand only) or two hundred rupees for every day during which such failure continues, whichever is higher, starting with the first day after the due date, till the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No.58604 of 2013. The relevant paragraphs of the order are reproduced below for ready reference:- 4.3 The only issue for consideration in this appeal is whether the sale incentive, advertisement and publicity charges received by the appellant can be subjected to service tax, under the taxable category of Business Auxiliary Services. We find that the issue involved in the present case is no longer res-integra. Reliance is placed on the following decisions: Superior Drinks Pvt Ltd [2019 (6) TMI 272 CESTAT Mumbai] Narmada Drinks (P ) Ltd [2017 (5) GSTL 369 (T-Del)] Narmada Drinks (P ) Ltd [2018 (6) TMI 899 CESTATDelhi] Brindavan Bottlers Ltd [2019 (27) GSTL 354 (T-All)] SMV Beverages Pvt Ltd [2018 (17) GST 284 (T-Mum)] Nahar Inustrial En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clause the appellant's service is being charged to service tax. By process of elimination, we conclude that it is likely to be under Promotion or marketing or sale of goods produced or service provided by the client ; we note that no investigation has been undertaken by Revenue into the reasons for which appellants have received the payments. Hence, it is not very clear why the appellant has received the said amounts from M/s. Coca Cola. However, the Show Cause Notice, in Para 6.2, has stated that the amounts have been received from the brand owners to promote and market the brands of the brand owners. 10. When we look at the clause (i) the definition of the BAS, which covers promotion or marketing or sale of goods produced or servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e precedent judgment of this Tribunal in the case of Narmada Drinks (P) Ltd. v Commissioner of Central Excise, Raipur, 2017 (5) G.S.T.L. 369 (Tri.-Del.) we hold that the appellant is not liable to pay service tax on reimbursement of such expenses from Coca-Cola Company Limited. 4.6 In case of SMV Beverages [2018 (17) G.S.T.L. 284 (Tri. - Mumbai)] Mumbai Bench held as follows: 8 . The adjudicating authority has sought to tax the amounts received by the main appellant under category (i) or (ii) of the definition as reproduced herein above. For doing so, he has relied upon the PFL s Bottling Appointment and Trade Mark Licence Agreement entered into by the main appellant. 9. We have perused the agreement entered into by the main appellant with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as there is no service which has been provided by PFL in the case in hand. The findings of the adjudicating authority that the agreement requires the main appellant to promote the trademarks, which in term is nothing but the goods, seems to be farfetched as in the case in hand there is no mention of trade marks in the definition of BAS (as reproduced herein above). In short, we conclude that the main appellant is not promoting or marketing or selling the concentrates which are produced or provided by PFL to them for manufacturing of aerated waters. 4.7 In case of Narmada Drinks Pvt Ltd [Final Order No ST/A/52245/2010-CU(DB) dated 18.06.2018] 5. After hearing both sides and perusal of record, we note that the lower Authority has held the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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