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13. The learned counsel further submitted that, India being a cricket loving nation, Assessee Company strategically promotes its products by advertising at cricketing events. Keeping the aforesaid in view, one of Pepsi's AE, namely, PCIC, Ireland, on behalf of all group entities located in cricketing nations, entered into a Global Partnership Agreement dated 28.10.2004 with Global Cricket Corporation PTE Limited (GCC) for obtaining sponsorship rights of various ICC cricketing events worldwide. The said agreement was placed on record and pointed out that PCIC, Ireland, had entered into the aforesaid agreement with GCC only with the consent of the group companies from whom reimbursement was sought. Thereafter, PCIC had entered into an agreement dated 9.09.2005 with the assessee company, wherein the assessee company admitted "that it recognizes the substantial popularity of the sport in India and has consistently promoted its range of products using the Cricket platform either through promotion of the events itself be they domestic or international or through endorsements of cricketing personalities". In view of these facts, the assessee company for promoting its own business, decided to reimburse a portion of the total sponsorship fees paid to GCC. The payment under the said agreement dated 9.09.2005 was made by the assessee company on the basis of joint decision taken by all Pepsi entities located in cricketing jurisdictions as these entities were promoting its products using the cricket platform and therefore, the allegation of the TPO that reimbursement of expenses was enforced upon the assessee company by PCIC was completely misplaced. He submitted that 60% of the total cricketing viewership is in the Indian sub- continent, i.e., India, Sri Lanka, Bangladesh and Pakistan and therefore, such a huge viewership was only to benefit the assessee in its business promotion and sales. Since the assessee company has been supplying concentrate, not only to the bottlers in India but also to the ones located in Sri Lanka, Bangladesh and Bhutan and therefore, in order to promote its sales in neighboring countries, it has been undertaking AMP activities in those jurisdictions also. In view of the aforesaid, proportionate reimbursement, i.e., on cost to cost basis was made by the assessee company to its AE. The said amount was disbursed only after obtaining requisite approvals from the Ministry of Sports & Youth Affairs. The approval letters issued by the Ministry of Sports & Youth Affairs to corroborate the said averment was also placed on record. The assessee solely and independently took decision regarding the AMP activities undertaken by it in the Indian sub-continent and no directives were received by it, in this regard, from its AE. To justify this averment, the learned counsel placed on record a Global Partnership Agreement dated 20.08.2008 entered into between the Assessee Company and ICC Development International Limited. All these contentions placed by the Ld. Counsel were to counter the view of the TPO and DRP that AMP activities of the assessee company were controlled by its AE.

37. He further contended that the entire AMP expenditure incurred by the assessee formed part of the assessable value under the excise laws and on which the assessee had paid excise duty. To demonstrate the same, he placed reliance on the decision of the Hon'ble Supreme Court in assessee's own case reported as Collector of Central Excise, Chandigarh vs. Pepsi Foods Ltd. 1997 (91) ELT 544 (SC) and submitted that such an amount also included the reimbursements made to the AE for ICC cricketing sponsorship. Hence, it the entire AMP expenditure formed part of the cost of manufacture for the assessee and given the mandate of the Special Bench that all selling and manufacturing expenses could not be included for the purposes of determining any excessive AMP expenditure, the entire adjustment deserves to be set aside. He also placed reliance on the decision of the Hon'ble Bombay High Court in the case of Coca Cola India Pvt. Ltd. Vs. The Commissioner of Central Excise (Central Excise Appeal no. 118 of 2007) to demonstrate the entire business model and structure of business operations of a company which operates in the same industry as the assessee. The assessee company was an intervener before the Hon'ble Bombay High Court in this case and the issue before the Hon'ble Court was, whether the assessee were entitled to avail of input service tax credit in respect of the advertising and marketing expenditure. The Hon'ble Court had also examined whether the advertising done by the assessee was integrally connected with the final product with the manufacture of concentrate since concentrate was not openly sold in the market. The Hon'ble Court, after examining the facts of the case, accepted that the advertising done by the assessee was integrally connected with the sale of the final product and consequential related and integral to the manufacture and sale of concentrate. The business exigency/necessity of the assessee in terms of incurring such expenditure was also approved by the Court and it was held that the assessee would be entitled to avail of the input service credit in respect of service tax paid by the assessee on advertising and marketing services availed off.

43. The learned DR further submitted that the very fact that Pepsi Cola (Ireland) had entered into agreement with Global Cricket Corporation Ltd. for advertising the Pepsi brand in cricketing events showed that the advertisement policy of the assessee was guided, approved and planned by its AEs. He pointed out that assessee bore 72.5% of the total payment made by the said AE under the aforesaid agreement on the claim of viewership even for matches played outside India. Thereafter, he placed reliance on the profit and loss account for AY 2006-07 to submit that the total raw material consumption cost was INR 35 crores, whereas the advertisement cost was INR 202 crores. He highlighted that the said figures indicated that the advertisement expense constituted more than two

52. First of all, in so far as the reimbursement of cost of expenditure incurred by Ireland (AE), it has been brought on record that the said AE has entered into a global partnership agreement dated 28.10.2004 with Global Cricket Corporation PTE Ltd. for the sponsorship right of Cricketing event world-wide. Since, assessee- company is mainly based in India where game of cricket is immensely popular, therefore, it was agreed amongst the group companies that the expenditure incurred for sponsoring the ICC cricketing events, all the group companies which had benefitted from the cricketing events in the form of advertisement will reimburse the cost. The said cost was purely for promoting assessee's own business and nowhere it has been brought on record that such a reimbursement of the cost was subject to any markup or any functions have been provided from where any income has been derived by the AE. The assessee on the basis of joint decision taken by Pepsi entities located in various cricketing jurisdiction had decided to reimburse the cost incurred by Ireland (AE) for sponsorship and advertisement as it will help the promotion of the business of such entities including that of the assessee company. Accordingly, the assessee has paid its proportionate share of reimbursement on cost to cost basis after requisite approvals from the Governmental authorities. Based on this transaction alone, TPO has deduced that: -