SKOL BREWERIES LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) IN these applications, the appellant seeks waiver of pre -deposit and stay of recovery in respect of service tax, interest thereon and penalties.

(2.) Two separate orders were passed by the Commissioner, one in adjudication of one show -cause notice confirming demand of service tax of Rs. 50,26,438/ - against the appellant and the other in adjudication of two show -cause notices confirming demand of service tax of over Rs. 1.10 crores against them, both under the proviso to Section 73(1) of the Finance Act, 1994. Penalty equal to service tax was also imposed on the assessee in each order of the Commissioner. The applications seek relief against the adjudged dues.

(3.) THE brand name "FOSTER'S" was acquired by SKOL from M/s. Foster's Australia Ltd. under an agreement dated 12 -9 -2006 and, according to that agreement, the said brand name stood assigned to SKOL with unfettered rights. It was this brand name which was supplied by SKOL alongwith specifications, formulae and other technical know -how to FIPL for manufacture of beer at the latter's brewery at Aurangabad. SKOL also had breweries including one at Aurangabad. They also manufactured the same commodity on their own and marketed the same all over India. The branded beer manufactured by FIPL was either marketed by them as directed by SKOL or supplied to SKOL or their indenters for marketing. In either situation, the goods had to be sold at the agreed price and FIPL had to pay Rs. 27 per case (12 bottles of 650 ml each and 24 bottles of 350 ml each) as "net proceeds". These transactions were examined by the ld. Commissioner who took the view that the arrangement was either in the nature of a "franchise" or in the nature of transfer of "intellectual property" by SKOL to FIPL. The impugned demands of service tax were raised on this basis.