Ruchi Food Products vs Commercial Tax Officer, Mylapore Assessment Circle, Madras

Thanikkachalam, J.—The assessee is the petitioner herein. The assessee is manufacturing pickles and the taxable turnover for the assessment

year 1982-83 works out to Rs. 12,16,619 which includes the turnover of Rs. 10,973.79. The assessing authority as well as the Appellate

Assistant Commissioner had determined the turnover of Rs. 3,05,122 and Rs. 9,11,497 as taxable at 5 per cent and 10 per cent respectively out

of Rs. 12,16,619. The turnover of Rs. 9,11,497 was ordered to be taxed at 10 per cent single point instead of 5 per cent multi-point by the

authorities below. Aggrieved, the assessee filed an appeal before the Appellate Tribunal.

The assessee had presented an application dated September 21, 1982, for registration of their pickles under the Trade and Merchandise Marks

Act, 1958. Following the earlier decision of the Appellate Tribunal in M.T.A. No. 556/83 dated March 21, 1984, the Tribunal held that the trade

mark registration certificate will come into effect from the date of application presented by the assessee concerned and since the pickles will fall

under item 103 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, the authorities below were correct in holding that Rs.

9,11,497 is to be taxed at 10 per cent single point instead of 5 per cent multi-point from September 21, 1982, since the assessee has presented an

application for registration from that date. Aggrieved by this order, the assessee is in revision before this Court.

The learned counsel for the assessee submitted that the assessee applied for registration of trade mark by an application dated September 21,

1982 and the registration was granted only on February 28, 1992. Therefore, the goods sold in-between these tow dates cannot be considered to

be sold under the registered trade mark. Hence, the turnover has got to be taxed at 5 per cent multi-point instead of 10 per cent single point. In the

xerox copy of the certificate issued by the Government of India Trade Mark Registry it is stated that the application for registration of the trade

mark was made on September 21, 1982 and the certificate was issued as per the direction of the Registrar of Trade Marks of February 28, 1992.

Therefore, according to the learned counsel, the Tribunal was not correct in holding that the turnover in the assessment year under consideration

should be taxed at 10 per cent single point. On the other hand, the learned Additional Government Pleader (Taxes) submitted that during the

relevant year under consideration according to the entry No. 103 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, the goods

sold even though after the application for registration of trade mark was made and before registration was granted, the turnover should be assessed

at 10 per cent single point.

We have heard the rival submissions. The fact remains that in the assessment year 1982-83 the assessee sold pickles. The turnover comes to

Rs. 9,11,497. This was taxed at 10 per cent single point by the authorities below which was accepted by the Tribunal. Now the learned counsel

for the assessee submitted that the application for registration of trade mark was made on September 21, 1982 and the registration of trade mark

certificate was granted only on February 28, 1992. Therefore, the turnover for the assessment year 1982-83 should be deemed to have been

obtained by selling the goods without registered trade mark. Hence tax is leviable at 5 per cent multi-point.

A similar question came up for consideration before a Division Bench of this Court in the case of Rajam and Company, Madurai v. State of

Tamil Nadu, represented by the Deputy Commissioner (C.T.), Madurai [1993] 91 STC 222; (1992) 2 MTCR 329 wherein, this Court came to

the conclusion that if the sale took place after the filing of the application for registration and before granting of the registration of trade mark, the

turnover should be taxed at 10 per cent single point and not under 5 per cent multi-point. This decision is concerned with entry No. 103 after the

amendment. It is also significant to note that for the assessment under consideration entry from October 10, 1979 in the First Schedule at item No.

103 runs as under :

(i) Biscuits, (ii) toffees, (iii) chocolates, (iv) confectionery, (v) butter, (vi) ghee, (vii) cheese and (viii) foods including preparations of vegetables,

fruits, milk, cereals, flour, starch, birds'' eggs, meat and meat offals, animal blood, fish crustaceans and molluses, which

(a) are sold under any brand name registered under the Trade and Merchandise Marks Act, 1958 (Central Act 43 of 1958), and

(b) do not fall under item 24.

Thereafter, there was an amendment in the First Schedule to the entry No. 103 from January 1, 1987 to March 11, 1993 runs as under :

(i) biscuits, (ii) toffees, (iii) chocolates, (iv) confectionery, (v) butter, (vi) ghee, (vii) cheese, (viii) milk foods including milk powder, (ix) condensed

milk and (x) foods including preparations of vegetables, fruits, milk, cereals, flour, starch, birds'' eggs, meat and meat offals, animal blood, fish

crustaceans and molluses, which are the products of any manufacturers or suppliers who have registered their products under the Trade and

Merchandise Marks Act, 1958 (Central Act 43 of 1958) whether they are sold under the registered brand name or not.

The assessment year in the present case is 1982-83. Therefore, the amendment in the First Schedule to the entry No. 103 with effect from

January 1, 1987, would not be applicable to the facts of this case. The later amendment would go to show that the department realised the lacuna

occurring in the earlier entry stating that if the goods are sold in-between the application of trade mark and grant of certificate of trade mark, if

goods are sold without trade mark tax cannot be levied at 10 per cent single point as per the unamended provision. Hence the amendment was

brought out to rope in the goods sold without trade mark in-between the date of application of trade mark and the grant of certificate of trade

mark, for levy at 10 per cent single point. Considering the facts arising in this case and entry No. 103 in the First Schedule as on the relevant

assessment year under consideration, we are of the opinion that the turnover of Rs. 9,11,497 should be taxed at 5 per cent multi-point instead of

10 per cent single point.

Accordingly, the order passed by the Tribunal directing to tax the abovesaid amount at 10 per cent single point, is set aside, and we direct the

department to tax, the turnover of Rs. 9,11,497 at 5 per cent multi-point. Accordingly, the revision filed by the assessee is allowed.

However, there will be no order as to costs.

Petition allowed.