TaxTMI 
TaxTMI 
2020 (11) TMI 925
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Chandigarh by following the decision of this Tribunal in the case of Superior Drinks Pvt Ltd Vs. CCE, Nagpur-2019 (6) TMI 272 - CESTAT Mumbai. The said decision was further followed in the case of Wave Beverages Pvt Ltd vs. C.C.E & ST, Ludhiana reported in 2020 (2) TMI 1255-CESTAT, Chandigarh. 3. The facts of the case are as under: 1. The Appellant is engaged in the manufacture of nonalcoholic beverages and fruit pulp based products like Maaza under the brand name of The Coca-Cola Company (USA) ('CCI'). The Appellant has entered into a 'Bottlers Agreement' with CCI wherein the Appellant has been authorised to use the trade marks in connection with preparation, packing, distribution and sale of beverages in and throughout a specified ter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to create, stimulate and sustain the demand for the Beverage in the Territory, provided that the Bottler shall submit all advertising, marketing and promotional projects relating to the Trade Marks or the Beverage to the Company for its prior approval, and shall use, publish, maintain or distribute only such advertising, marketing or promotional material relating to the Trade Marks or the Beverage as the Company shall approve and authorize. The Company may agree from time to time and subject to such terms and conditions as it shall stipulate in each case to contribute financially to the Bottler's marketing programs. The Company may also undertake, at its own expense and independently from the Bottler, any additional advertising or sales pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s squarely covered by the above decisions but questions the decisions themselves. In his submission, he has referred to Service Agreement between Coca Cola USA (CCI) and Coca Cola India Pvt Ltd (CCIPL) to state that "Coca Cola USA work as an agent of Coca Cola India and all terms and conditions of have been set by Indian Co which nis the supplier of concentrate." Thus the findings recorded by the Mumbai bench in case of Superior Drinks (supra) in 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 bottler but not between bottler and Coca Cola India who is the supplier of concentrate. This agreement now being referred to by the learned Authorized Representative is not even part of reli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 has in case of Nestle India Ltd [2009 (248) ELT 737 (TBang)] 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. From the Central Excise point of view the transaction ends there. Beyond the point of sale, T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le category defined as "Business Auxiliary Service". 4.7 The decision of the Hon'ble Bombay High Court relied upon by the Commissioner in the impugned order and by the Authorized Representative has been distinguished by the Mumbai Bench in case of Superior Drinks stating as follows: "5.9 There cannot be more convoluted application of the decision of the High Court and stretching the provisions in an agreement for purpose of levy of tax. If the arguments of the Commissioner were to be accepted then in that case every manufacturer/ producer/ supplier of the goods who purchases and material/ inputs is promoting the sale of his input supplier. Since as the sale of his finished goods goes up automatically consumption of inputs will go up a....