(1.) The main challenge in all these writ petition is regarding the validity of the provisions of sub-sections (2), (2A) and (2B) of Section 5 of the Kerala General Sales Tax Act, 1963 (for short the Act ) inserted by the Finance Act, 1998 (Act 14 of 1998) published in KG Ex.No.1221 dated 29.7.1998 with effect from 1.4.1998. The said sub sections read as follows:
(2.) The petitioners in all these writ petitions are dealers engaged in the purchase and sale of various commodities such as palm oil and others edible oil etc. They purchase goods either locally or interstate and sell the goods under a trade mark or brand name of which they are the trade mark holders of brand name holders. However, they have not registered the trade mark or brand name under the Trade And Merchandise Marks Act. They are aggrieved by the above amendments in so far as brand name holders/trademark holders who effect sale of manufactured goods under a brand name/trade name are treated as a separate class for point of levy of tax under the Act.
(3.) Sri. Arshad Hidayathullah, learned senior counsel appearing for the petitioner in O.P.No.1144 of 2002 relying on the decisions of the Supreme Court in Krishna Chandra V. Union of India (AIR 1975 SC 1568) regarding the approach to be made in interpreting a provision in a taxing statute and the decision of the Supreme Court in Johri Mal V. Director, C of H, Punjab (AIR 1967 SC 1568) regarding the interpretation to be placed on a provision to avoid the section being struck down as arbitrary and/or ultra vires and also relying on the dictionary meaning of the word holder used in sub-section (2), (2A) and (2B) of Sec. 5 submitted that the expression holder used in relation to trade mark and brand name must be understood as holders of registered trade mark and registered brand name. The senior counsel, for the said purpose, referred to the meaning of the word holder given in Websters new International Dictionary. The senior counsel also relied on the speech made by the Finance Minister while introducing the bill containing the provisions of sub sections (2), (2A) and (2B). The senior counsel further relied on the decisions of the Supreme Court in Sales Tax Commissioner v. Modi Sugar Mills (AIR 1961 SC 1047), in The State of Punjab v. Jullundur Vegetables Syndicate (AIR 1966 SC 1295) and in Janapada sabha v. C.P.Syndicate (AIR 1971 SC 57). The counsel also relied on a Circular issued by the Government of Tamil Nadu clarifying the scope of a similar provision contained in the Tamil Nadu Sales Tax Act which would support the interpretation placed by him on the meaning of the word holder used sections (2), (2A) and (2B) of Section 5 of the Act. The senior counsel submitted that all the petitioners who have filed writ petitions challenging the provisions of sub sections (2), (2A), and (2B) of sec. 5 are trade mark holders/brand name holders who are not registered under the Trade and Merchandise Marks Act and that none of the registered holders/brand name holders has challenged these provisions. The senior counsel accordingly submitted that if all dealers who are selling goods under any trade mark or brand name without any right or ownership over the said trade mark or brand name are treated on a par with registered trade mark/brand name holders who sells goods under the registered brand name/trade mark that will amount to discrimination treating dissimilarly situated persons alike attracting Article 14 of the Constitution. Senior counsel submitted that the sub-sections can be saved from the vice of Article 14 only if the expression holder used in the said sub-sections is given the meaning holder of Registered trade mark/brand name.