Custom, Excise & Service Tax Tribunal
Coca Cola India Pvt. Ltd vs Pune - Iii on 21 May, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPLICATION NO: E/MA(EH)-2447/2009 APPEAL NO: E/242/2008 (Arising out of Order-in-Original No. 42/Adj/2007 dated 29/12/2007 Commissioner of Central Excise, Pune - III.) For approval and signature: Hon'ble Shri P.G. Chacko, Member (Judicial) Hon'ble Shri S.K. Gaule, Member (Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? : No 2. Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : No 3. Whether Their Lordships wish to see the fair copy of the Order? : Seen 4. Whether Order is to be circulated to the Departmental authorities? : Yes Coca Cola India Pvt. Ltd. ...Appellant Vs Commissioner of Central Excise Pune - III ...Respondent
Appearance:
Mr. V.S. Nankani, Advocate for the appellant Mr. S.S. Katiyar, Authorised Representative (SDR) for the respondent CORAM:
Hon'ble Shri P.G. Chacko, Member (Judicial) Hon'ble Shri S.K. Gaule, Member (Technical) Date of decision: 21/05/2010 ORDER NO: ____________________________ Per: P.G. Chacko:
After hearing both sides, we are of the view that the appeal itself is fit for summary disposal in view of the decision of the Hon'ble High Court. Accordingly, after allowing the application (which seeks out-of-turn disposal of the appeal), we take up the appeal.
2. This appeal is directed against Order-in-Original No. 42/2007 dated 29/12/2007 passed by the Commissioner, confirming a demand of duty against the assessee (appellant) and imposing equal amount of penalty on them. In the impugned order, the learned Commissioner noted that, for an earlier period (March to June 2005), this Tribunal had held in favour of the Revenue in appeal No. E/2929/2006. The learned Commissioner followed the Tribunal's decision and accordingly passed the impugned order for the period August 2005 to July, 2006.
3. Learned counsel for the appellant submits that the Tribunal's order in appeal No. E/2929/2006 was set aside by the Hon'ble High Court and the relevant questions of law disposed of in favour of the assessee (appellant). Learned counsel has produced the full text of the High Court's judgment in Coca Cola India Pvt. Ltd vs. Commissioner 2009 (242) ELT 168 (Bom). The two questions of law framed by the High Court are the following:
"(a) Whether services of advertising and marketing procured by the Appellants in respect of advertisements for aerated waters are covered by the definition of the words "input services" as defined in Rule 2(l) of the CENVAT Credit Rules, 2004, when admittedly the Appellants manufacture concentrates exclusively used for the manufacture of the respective aerated waters which are advertised by the Appellants?
(b) Whether the advertisement or sales promotion of aerated waters undertaken by manufacturer of concentrate is covered by the inclusive part of the definition of "input service" contained in Rule 2(l) of the CENVAT Credit Rules, 2004?"
Both the above questions have been answered in the affirmative in favour of the assessee and against the Revenue.
4. It is not in dispute that the very same issues arise in the present case for the subsequent period. Therefore, the present case also requires to be disposed of in the light of the decision of the Hon'ble High Court. Accordingly, we hold that the services in respect of which CENVAT credit was taken by the assessee during the period of dispute are within the ambit of the definition of 'input service' given under Rule 2(l) of the CENVAT Credit Rules, 2004 and consequently the demand raised on them by the lower authority by way of denial of input service tax credit has to be set aside. Needless to say that the penalty also requires to be vacated.
5. In the result, the Commissioner's order is set aside and this appeal is allowed.
(Dictated in Court) (S.K. Gaule) Member (Technical) (P.G. Chacko) Member (Judicial) */as ??
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