TMI Blog2007 (10) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... missions pointed out by the Intelligence wing of the Department after conducting an inspection of the business premises of the petitioner/assessee. The assessee had filed his objections to the pre-assessment notice. The assessing authority has completed the assessment by holding that the assessee effected sales of the bakery products under a brand name or a trade mark, and therefore, exigible for payment of sales tax under Sub-section (2) of Section 5 of the Act. While coming to the aforesaid conclusion the assessing authority in its order of assessment passed, has stated as under: The above proposal was duly communicated to the assessee and he filed reply as read above. Regarding the issue of brand name sale, assessee has admitted that he has printed the name and address of his bakery on the covers used for packing. Besides the name and address of the bakery the cover specify the particular variety of the commodity packed in it. These specifications are sufficient for sale of goods under Brand name. Moreover the first seller has not remitted any amount towards sales tax, because she is not liable to pay tax on the sales to brand name holder. 4. Aggrieved by the quantificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority is seen to have confirmed the assessment as such. The learned Chartered Accountant in this context has argued that the appellant do not hold any brand name or trade name and so there is no justification in disallowing the exemption claimed by the appellant. We do not find any merit in this contention put forward by the learned Chartered Accountant. We find that the appellant has admitted that he has printed the name and address of his bakery on the covers used for packing. Besides, the name and address of the bakery the cover specify the particular variety of the commodity packed in it. In our opinion these specifications are sufficient for sales of goods under brand name and so, the assessment on this account and confirmed by the first appellate authority is in order. The said issue is, therefore, found against the appellant. 6. Aggrieved by these findings and conclusions reached, the assessee is before us in this revision petition filed under Section 41 of the Act. 7. The assessee has framed the following questions of law for our consideration and decision. They are as under: 1. Whether on the facts and in the circumstances of the case the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also a registered dealer under the Act, has paid sales tax on the sales effected to the assessee and therefore, the amount of tax paid by him requires to be reduced while quantifying the tax liability of the assessee. Since this issue was not urged either before the assessing authority or before the Tribunal, in our opinion, the said question for the first time cannot be canvassed before us. The law on the point is now well settled by catena of decisions of this Court. Reiteration of those principles, in our opinion, is wholly unnecessary. Therefore, the second issue canvassed by the learned Counsel for the assessee requires to be rejected. 13. Now, coming to the first issue, the provisions of Sub-section (2) of Section 5 of the Act requires to be noticed. The said section reads as under: 5. Levy of tax on sale or purchase of goods: Notwithstanding anything contained in this Act, in respect of manufactured goods other than tea, which are sold under a 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. 14. Sub-section (2) of Section 5 of the Act is a deeming provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the interpretation of statute. Of course the meaning of the word holder in Collins Cobuild English Dictionary for advanced Learners Major New Edn. (3rd Edn. 2001) is some one who owns or has something . The word holder in Webster's Third New International Dictionary means, one that holds something: as a (1) possessor, owner-often used in combination . In this context it must be noted that when a person uses a particular brand name or trade name for his product, ordinarily he has got the ownership over the said brand name or trade name. It is only when it comes to the question of infringement of the trade mark or brand name used by such person a situation may arise as to whether such person can seek relief against the person who is responsible for such infringement. It is in that context the relevance of the Trade and Merchandise Marks Act arises. As the Special Government Pleader has pointed out any person can do business by using a trade mark or a brand name for which there is no legal impediment. This is also recognised by the Trade and Merchandise Marks Act. It is in that context the relevance of the definition of trade mark and the provisions of Section 27 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thene cover. At the time of hearing of this revision petition, learned Counsel Sri.Shamsudheen, has produced before us the polythene cover which is used for the purpose of packing the bakery products and effecting sale of the said products. A perusal of the polythene cover produced by Mr.Shamsudheen would clearly indicate that the dealer has put a brand name as 'SB' and below that logo has put his shop's name as Shaju Bakery and thereafter the product contained in the polythene packet is also indicated. All these would clearly demonstrate that the petitioner is not a mere second seller of the bakery products which he has purchased from 'Appu's Bakers', Nanthencode. 19. In the instant case, after the bakery products are purchased, the petitioner wraps them/covers them with a polythene cover which would indicate the brand name and also the product which is sold in the polythene cover. 20. Under the Act, a second seller of specified scheduled goods is exempted from payment of the sales tax. Sub-section (2) of Section 5 of the Act carves out an exception. The exception is, if a manufactured goods like a bakery product other than tea is sold under a brand n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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