TMI Blog2011 (6) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... within the group all of which should be ignored and the last sale by the brand name holder to the market is assessable as deemed first sale under section 5(2) of the Act. We, therefore, do not find any merit on this ground raised and consequently reject the petitioner's challenge against the assessment confirmed by the Tribunal. The petitioner is entitled to the relief by way of credit and set-off of tax to the extent the petitioner produces evidence regarding collection and remittance of tax by the first sellers, i.e., the manufacturers of the goods from the petitioner, which are also companies within the same group - S.T. Rev. No. 67 of 2011 - - - Dated:- 21-6-2011 - RAMACHANDRAN NAIR C.N. AND BHABANI PRASAD RAY, JJ. For the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and one device adopted was to give brand name rights to job-workers also so that when they manufacture and sell the goods first sale itself happens to be by the brand name holder so that second seller, though also is brand name holder can claim exemption from tax. In other words, the attempt is to make the first sale itself as between the brand name holders so that the second sale, which is the genuine bulk sale to the market at real price can be claimed as exempt from tax. This is one such case, where the brand name holders gave the brand name rights to sister concerns engaged in manufacture of products and the petitioner purchased the products from them and sold in the market claiming second sale exemption, which was rejected by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for easy reference: 5. (2) Notwithstanding anything contained in this Act in respect of manufactured goods other than tea, which are sold under the trade mark 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 purposes of this Act. 4. The contention of the petitioner is that the second sale of branded goods can be treated as deemed first sale only when first sale is not by the brand name holder, no matter the second sale also happens to be made by the owner of the very same brand name under which the goods are manufactured and marketed. Learned counsel for the petitioner has mainly relied on our observations in the decision in State of Kerala v. Kitchen Applianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd name Elite under which cakes and breads are manufactured and sold to the market. Since the object of section 5(2) is to levy tax on the genuine wholesale price, there is no need to examine whether sales between the brand name holders within the group is at realistic price or that the margins obtained by the second seller, i.e., the petitioner to the market is reasonable or not. In our view, the only way to achieve the objective of section 5(2) is to levy tax on the brand name holder who makes the sale to the market whether it is directly to the consumers or to retail dealers for resale to consumers. We, therefore, hold that for the purpose of section 5(2) inter-dealer sales between the brand name holders should be ignored and the last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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