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M/s Dabur Research Foundation Versus Commissioner Of Central Excise And Service Tax, Ghaziabad

2016 (1) TMI 888 - CESTAT ALLAHABAD

Supply of tangible goods - revenue was of the view that allowing use of such capital assets amounts to providing of services, namely, "supply of tangible goods" service. - Held that:- It is not disputed that the appellants have already discharged VAT on the transaction. The terms of the agreement have been examined in the Order in Appeal in detail. Hon'ble High Court of AP in case of Rashtriya Ispat Nigam Ltd. vs Commercial Tax Officer [1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT] - The contra .....

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etitioner : 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 Oncology Limited (FKOL in short) in respect of certain capital assets. Interpreting the said agreement, the revenue was of the view that allowing use of such capital assets amount .....

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tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. The said Article reads as under: Article 366 was therefore amended by inserting a definition of "tax on the sale or purchase of goods" in Clause (29A). The definition reads: "[(29-A) "tax on the sale or purchase of goods" includes- (d) a tax on the transfer of the right to use any goods for any purpose (whe .....

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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 th .....

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'Bailment', 'bailor' and 'bailee' defined. - A bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'." 6. Thus in bailment there is transfer of go .....

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taxable event under section 5-E is the transfer of the right to use any goods. What does this phrase connote ? 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 b .....

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hat the owner of property delivers is to another person with the intent of passing the rights which he had it to the latter." (Corpus Juris Secundum, Vol. 87, page 892.) 9. The essence of transfer is passage of control over the economic benefits of property which results in terminating rights and other relations in one entity and creating them in another. While construing the word "transfer" due regard must be had to the thing to be transferred. A transfer of the right to use the .....

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the cab. This may be contrasted with the case when a taxi car is hired for going from one place to another. There the driver will have both the custody as well as possession; what is provided is service on hire. In the former case, there was effective control of the hirer (transferee) on the cab whereas in the latter case it is lacking. We may have many examples to indicate this difference. 10. Whether there is a transfer of the right to use or not is a question of fact which has to be determine .....

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sfer of right, to use the goods" the transaction must have following attributes:- a. There must be goods available for delivery; b. There must be a consensus ad idem as to the identify of the goods; c. The transferee should have a legal right to use the goods consequently all legal consequences of such use including any permission or licenses required therefore should be available to the transferee; d. For the period during which the transferee has such legal right, it has to be the exclusi .....

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