National Dairy Development Board vs Commissioner of Sales Tax

The sales tax application has been taken out upon an order passed by the Sales Tax Tribunal declining to make a reference to this Court. The dispute in the present case relates to assessment year 1991-92. The issue before the court is as to whether the applicant was entitled to a drawback under rule 42H of the Bombay Sales Tax Rules, 1959. This would depend upon the construction which is required to be placed on the provisions of section 2(26) of the Act read with the Explanation which adverts to a seller holding a trade mark. The Tribunal has taken the view that "holding a trade mark" must refer to "holding a registered trade mark". In the present case, the mark of the applicant was registered on October 31, 1996 with effect from July 12, 1988. We are of the view that the Tribunal was not justified in rejecting the application for a reference which raises a substantial question of law which would warrant a decision by this Court. We, accordingly, dispose of the application by directing the Tribunal to submit the following question of law for reference to this Court : (i) Whether on a proper interpretation of section 2(26) read with the Explanation thereto, the Tribunal was justified in holding that the phrase ''trade mark'' refers to a ''registered trade mark'' and not to an ''unregistered trade mark'' ?

The sales tax application shall accordingly stand disposed of in these terms.