TMI Blog2021 (2) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... at crew of the petitioner who worked during the first shift shall not be engaged in the second shift - Under the agreement, the petitioner was merely required to supply required number of cranes for the purpose of material handling and for the purpose of loading/unloading. The facts that the lifts will be operated by the drivers of the petitioner and that the crane will not be parked inside the 6th respondent BHEL premises after the stipulated working hours make its clear that it is the petitioner who was in effective control of these material handle equipments / cranes. Further, the agreement also indicates that trip register should be maintained by the petitioner's driver and that in case the loss of original trip register, the sixth respondent BHEL should not entertain the claim of the petitioner. In RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMERCIAL TAX OFFICER, COMPANY CIRCLE, VISAKHAPATNAM [ 1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT] , the the Andra Pradesh High Court came to a conclusion that the transfer of right to use goods necessarily involves delivery of possession by the transferor to the transferee and transfer to effective control. There is neither transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (CT) has upheld the demand confirming the assessment orders passed by the third respondent vide impugned common order dated 16.02.2015. 6. Assailing the impugned common orders, the learned counsel for the petitioner submits that the agreement dated 08.12.2011 signed between the petitioner and the BHEL was a contract of service for supply of tangible goods within the meaning of Section 65(105)(zzzzj) of the Finance Act, 1994 read with Section 66(E)(f) of the Finance Act, 2012. It is submitted that the issue is no longer res integra in the light of the decisions of the Hon'ble Supreme Court in State of Andhra Pradesh and Another Vs. Rashtriya Ispat Nigam Ltd. , (2002) 126 STC 114 and in Aggarwal Brothers Vs. State of Haryanana , (1999) 113 STC 317 (SC) : (1999) 9 SCC 182 and in Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others , (2006) 145 STC 91 : (2006) 3 SCC 1. 7. The learned counsel for the petitioner submits that the issue is also covered in favour of the petitioner by the decision of the Division Bench of this Court in Aban Loyd Chiles Offshore Limited Vs. State of Tamil Nadu , (2012) 53 VST 89 (Mad). The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioner submits that there is no transfer of right to use as much as the effective control over the equipments lies with the petitioner and therefore, the question of levying tax on transfer of right to use under Section 4 of the Tamil Nadu Value Added Tax Act, 2006 did not arise. 9. Defending the impugned common order passed by the second respondent, the learned Additional Government Pleader appearing for the respondents drew my attention to Clause 15 of the Agreement which reads as under:- 15. During the contract period, if the contractor is not able to provide the required number of cranes on any day or part thereof, hire charges at prevalent market rate for such number of absent cranes will be recovered from the contractor. Recovery will be made at the rate of full day charges even for part of the days absence. In addition, a penalty of ₹ 300/- will be deducted additionally for the absence. 10. The learned counsel further submits that similar matters have been decided by the Gauhathi High Court in HSL Asia Ltd. Vs. State of Assam , (2007) 8 VST 314 and by the Andhra Pradesh High Court in ONA WAY Engg. P. Ltd. Vs. State of Andra Pradesh , ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular outlet and any misuse of such exclusively licensed right rendered, the franchisee open to action which meant to include the termination of agreement in terms of XIV of the said agreement. Therefore, it is a case where goods which are in the nature of intangible or incorporeal goods were available for delivery there were consensus adidem to the identity of such goods as the transferee has a legal right to use the goods and during the period when the agreement was in force, namely for a period of 10 years it was an exclusive right given to the transferee by the petitioner in respect of a particular store and consequently a transfer of right to use and not merely a licence to use the goods and during the period when the agreement was in force, the petitioner as the transferor could not transfer such goods with particular reference to the exclusive right given in respect of a particular store to any other party. Thus, all the attributes to constitute transfer of right to use the goods have been fulfilled and therefore, we have no hesitation to hold that the tests laid down by the Hon'ble Supreme Court in BSNL's stands fully satisfied and the right given by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pointed out that for transferring the right to use the trade mark, it is not necessary to hand over the trade mark to the transferee or give control or possession of the trade mark to him and it could be done merely by authorizing the transferree to use the same in the manner required by law and the right to use the trade mark could be transferred simultaneously to any number of persons. It was held that the assessee in the said case retained the liberty to use the mark in the event of the licensor started to manufacture the products equally it retained the liberty to grant licence to any other individual person or company to use the trade mark and such right being an intangible or incorporeal goods which can be merchandised by the registered owner and as pointed out by the Hon'ble Supreme Court the word goods is defined in a very wide terms so as to bring in both the tangible and intangible objects and trade mark right is intangible goods which could be subject matter of transfer. The above decision would squarely apply to the case on hand. Since the petitioner has retained the liberty to use the trade mark at the same time, the transfer right to use the incorporeal right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court has laid down the guidelines as to when there will be the transfer of right to use . The paragraph 97 merely states the details as follows:- (a) there must be goods available for delivery; (b) there must be a consensus ad idem as to the identity of the goods; (c) the transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licences required therefor should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor-this is the necessary concomitant of the plain language of the statute viz. a transfer of the right to use and not merely a licence to use the goods; (e) having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. 17. In Rashtriya Ispat Nigam Limited Vs. Commercial Tax Officer, Company Circle, Visakhapatnam , (1990) 77 STC 182 (AP), the the Andra Pradesh High Court came to a conclusion that the transfer of right to use goods necessarily involves delivery of possession by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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