TMI Blog2008 (2) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of inter-State sale and since the supplier has not paid sales tax on their sales by virtue of exemption granted to them, the appellant is liable to pay tax under section 5(2B) of the Act. Therefore, even if the first point raised is answered in favour of the appellant, the appellant has no escape from liability by virtue of operation of section 5(2B) of the Act. - - - - - Dated:- 4-2-2008 - RAMACHANDRAN NAIR C.N. AND RAMACHANDRAN NAIR T.R. , JJ. The judgment of the court was delivered by C.N. RAMACHANDRAN NAIR J. The appellant is challenging annexure C order of clarification issued under section 59A of the Kerala General Sales Tax Act, 1963 by the Commissioner of Commercial Taxes. Even though the Commissioner has clarified th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler or from any other person any goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under subsection (1), (3), (4) or (5) of section 5 and either, (a) consumes such goods in the manufacture of other goods for sale or otherwise; or (b) uses or disposes of such goods in any manner other than by way of sale in the State; or (c) despatches them to any place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce, shall, whatever be the quantum of the turnover relating to such purchase for a year, pay tax on the taxable turnover relating to such purchase for the year at the rates mentioned in section 5. All wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law) v. C.T. Kochouseph [2004] 136 STC 545; [2005] 13 KTR 58 and an unreported decision of a Division Bench of this court in O.P. No. 34485 of 2000 and connected cases dated July 10, 2007(1) and contended that the issue raised is squarely covered by the above decisions of this court and several other unreported decisions. It is further contended by the learned Government Pleader that the appellant's case is very similar to the case decided by the three-judge Bench of the Supreme Court in State of Tamil Nadu v. M.K. Kandaswami [1975] 36 STC 191. We find that the appellant has not challenged the validity of section 5A(1)(c) of the Act which provides for levy of purchase tax on purchase made by a dealer of taxable goods, if the supplier ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt aspect in this case is whether irrespective of section 5A of the Act, the appellant is liable to pay tax under section 5(2B) which provides for payment of sales tax by the brand-name holder when the product purchased is despatched to outside Kerala otherwise than by way of sale in the course of inter-State trade or commerce. The scheme of levy of tax on branded products contained in sections 5(2), 5(2A) and 5(2B) are extracted hereunder: 5(2) Notwithstanding anything contained in this Act, in respect of manufactured goods other than tea, which are sold under a trademark or brand name, the sale by the brand-name holder or the trade mark holder within the State shall be the first sale for the purpose of this Act. 5(2A) Where a deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first seller for such seller to claim exemption under sub-section (2A). Since the appellant has not issued any declaration to the manufacturer under sub-section (2A), the Commissioner thought that sub-section (2B) has no application. However, in this case since the supplier is entitled to exemption on their sales by virtue of another notification issued under section 10 of the Act, there was no necessity for the appellant to issue any declaration in terms of sub-section (2A) of section 5 for the seller to claim exemption. However, all the conditions of section 5(2B) are satisfied inasmuch as the appellant has purchased and despatched the branded goods to outside the State otherwise by way of inter-State sale and since the supplier has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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