Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE STUDY/2009-10/012
30 September 2009

 

CASE STUDY

 

 

INTRODUCTION

 

Under the Cenvat Credit Scheme, cenvat credit can be availed by an assessee on the Capital goods, inputs and input services. The definitions of what will constitute inputs, capital goods and input services have been given in the Cenvat Credit Rules, 2004. However, the definitions given are not absolutely clear and leave much room for interpretation. The services which are utilised in or in relation to manufacture of finished goods are said to be input services. Certain other services have also been specified in the inclusive definition of input services. In the case under study, the assessee was utilizing the service of advertising and sales promotion of aerated beverages which were being prepared by the bottling factories. The assessee was manufacturing the concentrates used in the said aerated beverages. Whether it can be said that the services of advertisement and sales promotion utilised by the assessee were input services for him and cenvat credit was, therefore, available to him, is the issue dealt in the case under study.

 

 

RELEVANT PROVISIONS

 

Rule 2 (l) of the Cenvat Credit Rules, 2004: -

 

(l) "input service" means any service,-

 

(i) used by a provider of taxable service for providing an output service; or

 

(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products, upto the place of removal,

 

and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal;

 

 

Coca Cola India (P.) Ltd v/s Commissioner of Central Excise, Pune-III

 

{[2009] 22 STT 130 (BOM)}

 

BRIEF FACTS OF THE CASE

 

-  Appellants are manufacturers of non-alcoholic beverages bases or concentrates. These concentrates are known and sold under the respective brand names such as Coca Cola, Fanta, etc.

 

-  The concentrate is sold by the Appellants to bottling companies, who in turn sell the aerated beverages manufactured from the concentrates to distributors and who in turn sell it to retailers for the ultimate sale to the consumer.

 

-  The advertisement and sales promotion activities including market research are undertaken by the Appellant. There are different types and forms of advertisement, in all forms of media print, television, radio, etc.

 

-  The brand name and trade mark is licensed in favour of the Appellants by the Coca Cola Company, USA.

 

- Appellants were availing cenvat credit of the service tax paid on advertising services, sales promotion, market research and the like and were utilizing such credit towards payment of excise duty on the concentrate.

 

-  Benefit of Cenvat credit on was denied to the Appellants on the ground that that the advertisements do not relate to concentrates manufactured by the Appellants but the aerated beverages prepared by the bottling companies.

 

- The Tribunal as well as the lower authorities denied cenvat credit to the appellants. Hence, appellants are before the High Court.

 

QUESTION FOR CONSIDERATION

 

The appeal was admitted in the High Court for consideration of the following questions: -

 

(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?

 

 

JUDGMENT OF HIGH COURT

 

v                   High Court held that it is now judicially recognized that Service tax is VAT which in turn is destination based consumption tax in a sense that it is on commercial activities and is not a charge on the business but on the consumer. Just as excise duty is a tax on value addition on goods. Service tax is on the value addition by rendition of service.

 

v                   Regarding the expression “means and includes” used in the definition of input service, High Court relied upon the judgments given in Regional Director v. High Land Coffee Works [1991 (3) SCC 617] and Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union [AIR 2007 SC 2320] and held that it is clear that the expression “means and includes” is exhaustive. By the word includes services which may otherwise have not come within the ambit of the definition clause are included and by the words means these are made exhaustive.

 

v                   The words “such as” were interpreted and judgment in the case of Good Year India Ltd. v. Collector of Customs [1997 (95) ELT 450] was relied upon alongwith various dictionaries. It was held that the words “such as” therefore are illustrative and not exhaustive. In the context of business, these are services, related to the business. They may not be exhaustive, but are illustrative.

 

v                   The expression “business” was interpreted in light of judgments given in cases of Pepsi Foods Ltd. v. Collector 1[996 (82) ELT 33], Pepsi Foods Ltd. v. Collector [2003 (158) ELT 552 (SC)] and State of Karnataka v. Shreyas Paper (P.) Ltd. [AIR 2006 SC 865]. It was held that the expression ‘Business’ is an integrated/continuous activity and is not confined restricted to mere manufacture of the product. Therefore, activities in relation to business can cover all the activities that are related to the functioning of a business. The term ‘business’ therefore, cannot be given a restricted definition to say that business of a manufacturer is to manufacture final products only. The term ‘business’ therefore, particularly in fiscal statutes is of wide import.

 

v                   The phrase “activity relating to business” employed in the definition of input services was interpreted by relying upon the judgments in the case of Doypack Systems (P.) Ltd. v. Union of India [1988 (36) ELT 201]. It was held that the words “relating to” further widens the scope of the expression activities relating to business. The expression “relating to” widens the scope of the definition.

v                   Similarly, the use of the word “activities” in the phrase ‘activities relating to business’ was also interpreted and it was held that the use of said words further signified the wide import of the phrase “activities relating to business”. The Rule making authority has not employed any qualifying words before the word activities, like main activities or essential activities etc. Therefore, it must follow that all and any activity relating to business falls within the definition of input service provided there is a relation between the manufacturer of concentrate and the activity. Therefore, the phrase “activities relating to business” are words of wide import.

 

v                   High Court held that it was clear that the burden of service tax must be borne by the ultimate consumer and not by any intermediary i.e., manufacturer or service provider. In order, to avoid the cascading effect, the benefit of Cenvat credit on input stage goods and services must be ordinarily allowed as long as a connection between the input stage goods and services is established. Conceptually as well as a matter of policy, any input service that forms a part of the value of the final product should be eligible for the benefit of Cenvat credit.

 

v                   The High Court further held that the definition of input service can be effectively divided into the following five categories, insofar as a manufacturer is concerned :

 

(i)   Any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products,

(ii)  Any service used by the manufacturer whether directly or indirectly, in or in relation to clearance of final products from the place of removal,

(iii) Services used in relation to setting up, modernization, renovation or repairs of a factory, or an office relating to such factory,

(iv) Services used in relation to advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs,

(v)  Services used in relation to activities relating to business and outward transportation upto the place of removal.

 

Each limb of the definition of input service can be considered as an independent benefit or concession or exemption. If an assessee can satisfy any one of the limbs of the above benefit, exemption or concession, then credit of the input service would be available. This would be so even if the assessee does not satisfy other limb/limbs of the above definition.

 

v                   High Court further held that the principle that a specific provision will override a general provision is not applicable to provisions which are in the nature of concessions or exemptions. Reliance was placed on the judgment given in the case of HCL Ltd. v. Collector of Customs [1998 (77) ECR 126 (T)].

 

In context of the case, it was held as under: -

 

v                   High Court held that a consumption tax derives its name from the fact that tax burden is ultimately borne by the final consumer and business does not bear the burden of the tax, since the business are allowed to take credit of tax paid on inputs supplied/received by them. If therefore Cenvat is denied to the input service received by the appellant herein, they will become burden to the appellant, which is against the very grain or principle of VAT being a consumption tax.

 

v                   It was held that service tax, therefore, paid on expenditure incurred by the assessee on advertisements sales promotion, market research will have to be allowed as input stage credit more particularly if the same forms a part of the price of final product of the assessee on which excise duty is paid. In other words, credit of input service must be allowed on expenditure incurred by the assessee which form a part of the assessable value of the final product. If the above is not done, as sought to be done by the department in the present case, it will defeat the very basis and genesis CENVAT i.e., value added tax.

 

 

v                   High Court relied upon the Explanatory note by HSN to Heading 21.06 and held that the said note proves an integral link between concentrate manufactured by the assessee and the beverage (aerated water) manufactured by the bottler from it. The concentrate manufactured by the appellant is classified and assessed to Cenvat (excise duty) under heading 21.06 by the Schedule to Central Excise Tariff Act, 1985. That heading is identical to heading 21.06 of organised system of nomenclature issued by WCO.

 

v                   The relevant extract of the Explanatory note was considered and it was found that the concentrates contain the flavouring ingredient are characteristics of a particular beverage. The beverage in question was obtained simply by diluting the preparation with water, sugar and carbon dioxide gas.

 

v                   It was further held that the Explanatory Note also explained the rational for business being arranged in this industry in a particular manner. The method of doing business adopted by the appellants avoids unnecessary transport of large quantity of water. In addition, the bottles and crates have to be collected back from the shopkeepers or dealers and taken back to the factory for filling the fresh batch on a constant basis. At all times, quality of beverage, marketing support of the beverages is done by the brand name holder-cum-concentrate manufacturer.

 

v                   It was held that Revenue’s contention that the advertisement and/or marketing in the appellant’s case is not connected with the manufacture of concentrates but with the sale of aerated water manufactured out of the concentrates by the bottlers and not appellant and therefore, not covered under second part of definition of input; if accepted would go against the very core and genesis of Cenvat credit scheme. High Court held that such an interpretation would be plainly unacceptable.

 

 

v                   In the end, High Court held that the credit was availed on the tax paid on the input service, which was advertisement and not on the contents of the advertisement. Thus it was not necessary that the contents of the advertisement must be that of the final product manufactured by the person advertising, as long as the manufacturer could demonstrate that the advertisement services availed had an effect of or impact on the manufacture of the final product and established the relationship between the input service and the manufacture of the final product. The manufacturer thereby could avail the credit of the service tax paid by him. Once the cost incurred by the service has to be added to the cost, and is so assessed, it is recognition by the revenue of the advertisement services having a connection with the manufacture of the final product. This test will also apply in the case of sales promotion.

 

 

DECISION OF HIGH COURT

 

Question (a) is answered in the affirmative in favour of the assessee and against revenue and question (b) again answered in the affirmative in favour of the assessee and against revenue.

 

Impugned orders of Commissioner (A) and the Tribunal set aside. Matter restored to the Commissioner to pass appropriate order in the light of judgment given by the High Court in this appeal. Appeal disposed off accordingly.

 

 

COMMENTS & CONCLUSION

 

It was rightly held that credit of service tax paid on advertisement service and sale promotion service by the Appellant-assessee was admissible especially when such expense was included in the price of final product on which excise duty was paid. It was rightly held that these services were input services for the appellant. If the cenvat credit would not have been allowed, then the appellant-assessee would have borne the burden of service tax paid on the said services, which would have lead to defeating the purpose of the Cenvat Credit Scheme.

 

This is a landmark judgement and will decide the number of cases pending at various forums. It has been held that the “input services” is very broad and all expenditure incurred in relation to business will be allowed.

 

*****

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com