2007 (5) TMI 133

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....n- exclusive license to Smith Kline Beecham Consumer Healthcare Limited. According to the Revenue, the grant of a licence to Smith Kline Beecham Consumer Healthcare Limited amounts to a transfer of a right to use goods and is, there fore, taxable under the Delhi Sales Tax on Right to Use Goods Act, 2002. 2. It is submitted by learned counsel for the Petitioner that there is in fact no transfer of the right to use any goods and this submission has been made without prejudice to his contention that a trademark is not goods. Learned counsel for the Petitioner has placed reliance on a decision of the Supreme Court in the Bharat Sanchar Nigam Ltd. and Anr. v. Union of India, 2006 (2) S.T.R. 161 (S.C.) = 4 (2006) 3 SCC 1, particularly the conc....

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....yana and Anr., (1999) 9 SCC 182. In the former case, there was no intention to transfer the right to use goods which was machinery belonging to a contractor while in the other case there was an intention to transfer the right to use goods which in that case was shuttering materials to be used in the course of construction of buildings. 4. We are of the view, on the basis of these two distinct and specific example given by the Supreme Court (in Rashtriya Ispat Nigam Ltd. and Aggarwal Brothers) as well as the exposition of law in Bharat Sanchar Nigam Ltd. that the Petitioner has made out a prima facie case for the grant of ad interim relief. Learned counsel for the Revenue contended that the Petitioner has not come to the Court with clean ....

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....ment, that since his client has also been paying service tax as postulated by the Finance Act, 1994 as amended from time to time and rate of tax paid by it, though to the Union, is about 13% as against a rate of tax of 4% under the Delhi Sales Tax on the Right to Use Goods Act, 2002, the balance of convenience would be in favour of the Petitioner in as much as the Petitioner is paying three times the amount of tax to the Union. Learned counsel for the Petitioner also re lies upon this to demonstrate the bona fides of the Petitioner who is not trying to avoid any payment of tax. 7. We are prima facie in agreement with the contention of learned counsel for the Petitioner and, therefore, are of the view that the Petitioner has made out a go....