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TMI Blog2009 (2) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... e arranged for manufacture of ice creams under the brand name "Joy Ice Creams" by Mascon Frozen Food (P) Ltd. which is an SSI Unit entitled to sales tax exemption on manufactured products. Under this arrangement, the respondent purchased and marketed the entire products. Even though exemption originally claimed by the respondent as second sales was allowed, the assessing officer later noticed that the ice creams sold by the respondent are under the brand name "Joy Ice Cream" and so much so, the respondent is a deemed first seller of the product liable to tax under section 5(2) of the Kerala General Sales Tax Act, 1963. Consequently revised orders were issued under section 19(1) demanding tax on the sales turnover of ice cream sold under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name "Joy Ice Creams" under this agreement, the Tribunal still held that the respondent is not liable to pay tax under section 5(2) for the reason that the respondent is not the brandname holder as contemplated under section 5(2) of the KGST Act. According to the Tribunal, holder of brand name means "owner of the brand name". It is on this narrow interpretation the Tribunal has allowed the cases. It is seen that the Tribunal considered the decision of this court in Bechu Company v. Assistant Commissioner (Assessment) reported in [2003] 132 STC 68; [2004] 12 KTR 155 wherein the High Court has considered the meaning of "holder of brand name" from Collins Cobuild English Dictionary for Advanced Learners Major New Edn. (3rd Edn. 2001). After qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is the holder of the brand name for the period of five years covered by the agreement. The finding of the Tribunal that "holder" means "owner" is absolutely untenable and will defeat the purpose of legislation because anybody by assigning brand name to another person can get over the statutory provision providing for levy of tax on sale of goods in brand names. Counsel for the respondent-assessee raised another contention that the manufacturer itself has got a licence with the original brand name holder for manufacture and sale of ice creams in the same brand name in Kerala. Clause (14) of the agreement which is extracted in the Tribunal's order is as follows: "During the period of the agreement the first and third party shall not g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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