TMI Blog2016 (1) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. Considering that the appellants have paid VAT on the transaction it will be in the interest of justice to allow stay of the recovery subject to deposite of Rs Three Lakhs only within eight weeks of this order. - stay granted partly. - Application No. ST/S/52405/14 In Appeal No. ST/51916/14 - - - Dated:- 16-10-2015 - ANIL CHOUDHARY, MEMBER (JUDICIAL) AND RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Manish Gaur, Adv. For the Respondent : Shri Ahibaran, Addl. Commissioner (AR) ORDER Per: Raju: M/s Dabur Research foundation, the appellants, are registered as provider of taxable service of Scientific and Technical Consultancy. They are entered into an Asset Licensing Agreement with M/s Fresenius Kabi Oncol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Bharat Sanchar Nigam Lt. Vs. Union of India - 2006 (2) STR 161 (SC). The adjudicating authority observed that in case of Rashtriya Ispat Nigam Ltd. vs Commercial Tax Officer (1990 77 STC 182 AP) has held as follows '5. An owner of property has a bundle of rights in it, namely, right to possess, right to use and enjoy, right to usufruct, right to consume, to destroy, to alienate or transfer, etc. In law it is not only possible but also permissible that the various rights and interest may be vested in various persons. While remaining the owner of a property, a person may create a charge on the property, mortgage it or lease it. In the transaction of sale, all the rights of the owner are transferred to the purchaser and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This means that unless there is a transfer of the right to use the goods, no occasion for levying tax arises; providing a facility which involves the use of goods nor even a right to use the goods is not enough, there must be a transfer of that right. The transfer of a right is an event which has a double aspect. It is the acquisition of a right by the transferee, and loss of it by the transferor. The vestitive fact, if considered with reference to the transferee is a derivative title, while from the point of view of the transferor it is an alienative fact. (Salmond on Jurisprudence - Twelfth Edition at pages 332 and 333.) 8. In Corpus Juris Secundum transfer is defined: The common use of the word 'transfer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s difference. 10. Whether there is a transfer of the right to use or not is a question of fact which has to be determined in each case having regard to the terms of the contract under which there is said to be a transfer of the right to use. The Commissioner (Appeals) has examined the contract in detail with reference to aforesaid decisions and reached a conclusion that the said agreement does result in provision of service. 3 Learned counsel for the appellant argued that it has been held in the case of Bharat Sanchar Nigam Ltd. Anr vs Union Of India Ors that to constitute a transaction for transfer of right, to use the goods the transaction must have following attributes:- a. There must be goods available for delive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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