STATE OF KERALA Vs. ALIKUNHI HAJEE

JUDGEMENT

(1.) Question raised in the connected revisions filed by the State is whether the Tribunal is justified in cancelling respondent's sales tax assessment on the sale of biscuits under brand name under Entry 17(i) of the First Schedule of the K.G.S.T. Act and directed assessment treating the biscuits as sold without brand name. We have heard the Government Pleader appearing for the petitioner and the Counsel appearing for the respondent.

(2.) On going through the Tribunal's order we find that the Tribunal followed their another order in the case of Surya Marketing which also pertains to sale of biscuits. Eventhough Counsel for the respondent submitted that the said order of the Tribunal relied on by them in allowing this case was confirmed by this Court in S.T.R. Nos. 374/06, 367/06 and 375/06, on going through the judgment of this Court we notice that this Court has upheld the order of the Tribunal only because of the findings on facts by the Tribunal that no brand name was used in the sale of biscuits by the party in that case. However in this case we called for the wrappers of the biscuits sold by the respondent, which clearly show that the respondent's claim that no brand name is used, is absolutely incorrect. In fact the design, multicolour print and get up of the company's name, namely 'Ankit' along with product name clearly indicate that they are exclusive brand name developed and used by the respondent. This Court in the decision in Bechu and Co. and Ors. v. Asst. Commissioner, 2003 2 KerLT 1009 held that registration of a brand name is not required for the purpose of assessment of the product under brand name. Even though respondent contended that what is written is the company name and same cannot constitute a brand name, we are unable to accept the contention because several brand names are developed with the name of the company like Britannia, Parle, etc: which are branded products of biscuits. Moreover Sub-entry (i) and (ii) in Entry 17 makes the difference between biscuits sold under the brand and the biscuits sold without name. It is common knowledge that Bakeries are manufacturing and selling biscuits in bulk and retails without any name whatsoever. Similarly there are small scale industries and tiny manufacturers engaged in manufacturing and sale of biscuits without giving any brand name. While these are the biscuits covered by Sub-entry (ii) i.e. biscuits sold without brand name, the other parties manufacturing and selling biscuits with various exclusive brand names are covered by Sub-entry (i), i.e. biscuits sold under brand name. The respondents do not and cannot concede that the names used by them can be used without infringement of their rights by others. Eventhough Counsel has relied on the judgment of the Supreme Court reported in Astra Pharmaceuticals (P) Ltd. v. Collector of C.Ex. Chandigarh, 1995 75 ELT 214 (SC) we notice that the same pertains to sale of medicines and what was sold was a standard formulation with the name of the manufacturing house which was not found to be a trade name or brand name as it was only a formulation in accordance with the specification contained in pharmacopoeia. However biscuit is a unique consumer product with its taste and flavour varying with the manufacturers making it. We are therefore unable to sustain the Tribunal's order. Consequently S.T. Revisions are allowed by reversing the order of the Tribunal and by restoring the assessment. Registry will attach colour printouts submitted by the Government Pleader to be attached with the judgment to form part of it.