TMI Blog2016 (8) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... o.8/2003-CE ibid consequently the demand of duty has been confirmed alongwith interest and equivalent penalty was also imposed. 2. In the impugned order, it is alleged that against the appellant that they are using brand name SAGAR which is owned by M/s. Sagar Machine Tools Pvt. Ltd., 418, Industrial Area-A, Ludhiana (SMT). Therefore, the appellant is not entitled to avail the benefit of exemption Notification No.8/2003-CE on the ground that the appellant is using the brand name SAGAR which is owned by third person. The appellant is contested that the said issue on the ground that the brand name has been registered in the appellant's own name vide application dated 20.4.1978. 3. It is further submitted by the learned Counsel for the appellant that initially the same brand name was registered in their father's name i.e. Late Shri Atma Singh on 18.4.1958 and the said brand name is owned by several other persons. In that view, it cannot be said that the brand name is owned by M/s. SMT only. In fact, M/s. SMT has applied for registration on 5.2.1996 the date when M/s SMT started using the said brand name, therefore, the benefit of exemption cannot be denied to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is applicable to the facts of this case. 8. We also find that, the appellant is entitled to avail benefit of the said Notification No. 8/03-CE dated 01.03.2003 as the appellant is using the said brand name prior to the brand name registered for the other person. This issue also came up before this Tribunal in the case Novel Tronics Corporation (Supra) wherein the issue of denial of exemption under Notification before this Tribunal on the ground that the assessee was using brand name from 1993 where is the registered owner of said brand name which came into existence only in 1995. In these facts, this tribunal has observed as under: 2. After examining the records and hearing the learned JDR, we note that the appellate Commissioner's finding that the brand names in question belonged to the buyer is under challenge. The goods were cleared under two brand names, 'South Safe' and 'Crystal'. The lower appellate authority found that the respondents had been using the brand names safe' right from 1993 and that the buyer-company viz M/s Southern Saftey Systems Ltd. came into existence only in 1995. It was also found that the said company had not applied for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons may dissolve a firm in order to escape liability to assessment of taxes legitimately due from them but which have escaped assessment. In paragraph 19, the majority held : It is plausible that a distinction ought to be made between the death of an individual and the dissolution of a firm. Human beings, as assessees, are not generally known to court death to evade taxes. Death, normally, is not volitional and it is understandable that on the death of an individual, his liability to be assessed to tax should come to an end unless the statute provides to the contrary. With firms it is different, because a firm which incurs during its existence a liability to pay sales-tax may, with a little ingenuity, evade its liability by the voluntary act of dissolution. The dissolution of a firm could therefore, be viewed differently from the death of an individual and the partners could be denied the advantage of their own wrong. But we do not want to strike this new path because the Jullundur case (supra) and the two cases which follow it have likened the dissolution of a firm to the death of an individual. Let us therefore, proceed to examine the other provisions of the 1953 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake apparent from the record can be exercised by the Collector under Section 35 of the Act of 1953 even after the dissolution of an assessed firm, though on conditions specified in the section. The section contains a compelling implication that evident errors can be corrected no matter whether the firm is in existence or is dissolved. Dissolution is not a panacea for liability to pay sales-tax. It also added in paragraph 32 : It is indisputable that the first appellant firm was liable to be charged to sales tax on its business turnover. The charging provisions are contained in Chapter III of the Act of 1953 and Chapter II of the Act of 1959. In this appeal, we have to construe the machinery provisions of those Acts. In accordance with the view taken in the cases cited above, the machinery sections ought to be construed so as to effectuate the charging sections. The construction which we have placed on the machinery provisions of the 1953 Act will give meaning and content to the charging sections, in the sense that our construction will effectuate the provision contained in the charging sections. The resourcefulness and ingenuity which go into well-timed dissolution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of partners for the tax due from a dissolved firm and provides that they shall be jointly and severally liable to pay the tax due from the firm under the Act of 1959 or under any earlier law , whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines earlier law to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales-tax, it could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we thought it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the Courts, not the legislature, who have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before leaving the judgment in Murarilal s case (supra), we wish to add that so far as partnership firms are concerned, the Income Tax Act contains a specific provision in Section 189(1) which introduces a fiction qua dissolved firms. It states that where a firm is dissolved, the Assessing Officer shall make an assessment of the total income of the firm as if no such dissolution had taken place and all the provisions of the Income Tax Act would apply to assessment of such dissolved firm. Interestingly enough, this provision is referred to only in the minority judgment in M/s. Murarilal s case (supra). 27 . The argument that Section 11A of the Central Excises and Salt Act is a machinery provision which must be construed to make it workable can be met by stating that there is no charge to excise duty under the main charging provision of a dead person, which has been referred to while discussing Section 11A read with the definition of assessee earlier in this judgment. 28. Learned counsel for the revenue also relied upon the definition of a person under the General Clauses Act, 1897. Section 3(42) of the said Act defines person as under :- (42) Person sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d since the law will not permit this, the Act needs to be interpreted accordingly. We wholly disapprove of the approach of the High Court. It flies in the face of first principle when it comes to taxing statutes. It is therefore, necessary to reiterate the law as it stands. In Partington v. A.G., (1869) LR 4 HL 100 at 122, Lord Cairns stated : If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable, construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute . 32 . In Cape Brandy Syndicate v. IRC, (1921) 1 KB 64 at 71, Rowlatt J. laid down : In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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