TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 516
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....ppeals), Customs, Central Excise & Service Tax, Ghaziabad. 2. The facts of the case in brief are that the Appellant is a non-profit making organization registered as a company incorporated under Section 25 of the Companies Act, 1956. During the relevant period, the Appellant was approved by the Department of Science and Technology and was providing 'Integrated Research Solutions' in Pre-Clinical Biology to National and International pharmaceutical, chemical and Biotechnology companies. The Appellant provides comprehensive range of services for pharmacological, biological and analytical testing of drugs and chemicals. 3. The Appellant entered into an Asset Licensing Agreement dated 19.05.2009 with M/s. Fresenius Kabi Oncology Limited. FKOL....
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....d Order-In-Appeal, recalculated the demand to Rs.39,86,350/-. Hence the present appeal before the Tribunal. 9. Ld. Counsel appearing on behalf of the Appellant urges as under : - 9.1 It is urged that the taxable service with reference to 'supply of tangible goods' has been defined under Section 65(105)(zzzz) of the Finance Act, 1994 and reads as under:- "Taxable service means any service provided to any person, by any person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances." ( emp. Supplied ) 9.2 The scope of service was clarified by the Government vide D.O.F. No.334/1/2008-TRU dated....
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....on and the VAT authorities already concluded the assessment proceedings in respect of the same transaction, considering the transaction as the transfer of right to use goods. Therefore, in terms of the above referred Circular, the same transaction is not taxable under the Service tax. Further reliance is placed on the decision of this Tribunal in the matter of M/s. Rockwell Automation India (P) Ltd. vs. CCE, Ghaziabad passed vide Final Order No.70660-70662/2019 dated 25.03.2019 in which held as follows: "6. Having considered the submissions from both the sides and on perusal of record we note that it was submitted before the original authority that the said consideration on which Service Tax was demanded was subjected to sales tax and ori....
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....uring which the transferee has such right, it has to be to the exclusion of 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 license 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. 9.6 The Commissioner (Appeals) concluded that in the case of the Appellant, the above condition of (d) and (e) are not satisfied. 9.7 The appellant urges, that the above finding establishes that the goods were exclusively given for use to the customer of the Appellant, and they were free to use the goods. The agreement provides that even i....
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....urther, the reliance placed by the Commissioner (Appeals) on the decision in the matter of Indus Tower Ltd. [2012 (285) E.L.T. 3 (kar.)] was wrong, because in that case the facts were different: it was noted as follows: "What is permitted under the contract is, a permission in the nature of a licence to have access to the passive infrastructure and permission to keep the equipments of the mobile operator in the pre-fabricated shelter with permission to have ingress and egress only to the authorised representatives of the mobile operator". 9.12 Whereas in the present case, the customer was having right to use the goods for the purpose of doing research as contemplated under the Agreement. 9.13 It is also submitted that since the transact....
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....observed as per Clause 2.7 of the agreement, that during the terms of the agreement the Appellant can sell its right or interest on the said assets. This agreement only allows FKOL to use the laboratory infrastructure developed by the Appellant for a specific purpose of oncological research, without transferring the possession or control. Thus, while FKOL had access to infrastructure in question, the Appellant did not lose control over the said infrastructure, which is evident from the written terms of the contract between the parties. It was further held by the Commissioner (Appeals) that the contention of the Appellant as regards the payment of VAT/Sales Tax considering the transaction as deemed sale, is also not conclusive for exclusion ....