2017 (3) TMI 1106

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....under Section 75 of the Finance Act, 1994 as well as penalties under various sections of the Finance Act. The appellant is a manufacturer of aerated water and was one of the authorized bottlers of Coca Cola. For manufacture of soft drinks, the appellant was procuring concentrate from Coca Cola and used such concentrate for manufacture of aerated products. The appellant received amounts from Coca Cola under the heads "Sales Target Incentive" and "Advertisement and Publicity expenses". 2. Department took the view that these amounts were received by the appellant towards expenditure incurred on advertisement and brand promotion of Coca-Cola. The Show Cause Notice dated 7.4.2011 was issued, which was followed by the confirmation of demand in t....

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....echnocrats Pvt. Ltd. Vs. Union of India 2013 (29) S.T.R. 9 (Del.). 5. Ld. Advocate explained the grounds elaborately on behalf of the appellant. He also pleaded that the SCN, invoking extended period of limitation, is hit by limitation inasmuch as the department had conducted audit of their records in 2008, 2009 and 2010. 6. Ld. DR on the other hand supported the impugned order. She submitted that even though the new service for promotion of brand name came into existence from 1.7.2010; the activity carried out by the appellant would be very much covered under "Business Auxiliary Services" which came to be included in the statue for much prior date. The appellant's has received certain amounts from M/s Coca-Cola in the books described as ....

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....ant'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 service provided, we fail to ....

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.... tax under this service, even if such promotions cannot be directly linked to a particular product or service. It is settled law that when a new service is introduced, the activities which are covered under the new services cannot be covered under any earlier services for the prior period. 13. The new service has been introduced under Section (65)(105)(zzzzq), which covers the service of promotion of brand names. Even if a view is taken that the service rendered by the appellant is covered under the new service w.e.f. 01.07.2010, the same cannot be charged to service tax under BAS for the earlier period. This view has been settled through various decisions of the High Courts and the Tribunal in the case of Sourav Ganguly vs. Union of India....