AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2020 (11) TMI 925
X X X X Extracts X X X X
X X X X Extracts X X X X
....der reported in 2020 (3) TMI 913 - CESTAT 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g and promoting the Beverage as may be reasonably required by the Company 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....L 284 (T-Mum)]. 4.3 Learned Authorized Representative does not dispute that the issue is 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll be taxable as Business Auxiliary Service in this category. This is neither the intention nor the rationale of the scheme of taxable 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/ inpu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on the ground that the advertisements do not relate to concentrates manufactured by the Appellants. It is not disputed that the advertisement expenses incurred by the Appellant form part of the sale price of the concentrates on which duty has been paid." 5.10 While considering the questions as above High Court has recorded what has been state by the Commissioner. In the case before High Court, the advertisement expenses were incurred by Coca Cola India and High Court had held that expenses towards advertisement services are part of the cost incurred for production of the finished product, and hence these services are to be treated as input services for determining eligibility to CENVAT Credit. In our view the decision of High Cou....