VICROCIL OIL COMPANY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In this revision under section 22(1) of the Andhra Pradesh General Sales Tax Act, 1957 (the APGST Act), the question is whether the petitioner, a registered dealer on the rolls of the Commercial Tax Officer, Osmangunj Circle, Hyderabad, is liable to pay sales tax under section 5AA of the APGST Act. The fact of the matter, which is not seriously in dispute in brief, is that for the assessment year 1997-1998 the petitioner was assessed under section 5AA of the APGST Act. Its appeal was, however, allowed by the Appellate Deputy Commissioner on March 4, 1999. In purported exercise of power under section 20(1) read with section 20(2) of the APGST Act, the jurisdictional Joint Commissioner revised the order on November 29, 2001 restoring the assessment made by the Commercial Tax Officer. The petitioner then went in appeal before the Sales Tax Appellate Tribunal. The same, being T. A. No. 114 of 2002, was rejected on November 24, 2008. Counsel for the petitioner submits that the petitioner purchases lubricating oil in bulk from registered sales tax dealers, packs them in plastic sachets of 500 ml, 1000 ml and 5000 ml as required under the provisions of the Lubricating Oils Packing and Regulations Act, 1998, and sells them by printing the name of his company "VICROCIL". According to the counsel, VICROCIL is not a registered trade mark nor it is a brand name. It is only printed to indicate that it is packed by the petitioner company. According to the counsel, unless the trade mark is registered under section 27 of the Trade Marks Act, 1999, section 5AA of the APGST Act is not attracted. Per contra, the senior standing counsel relies on Bechu & Company v. Assistant Commissioner (Assessment), Special Circle I, Kozhikode,2003 132 STC 68, and submits that, irrespective of registration, if the sale is effected by the holder of the trade mark it shall be deemed to be the first sale liable to be taxed.

(2.) Section 5AA of the APGST Act reads as under :

(3.) A plain reading of the above would show that the liability of a dealer who sells goods identifiable with a name becomes a holder of a trade mark and any sale by him would be deemed as the first point of sale excisable to sales tax subject, however, to allowing of set off of the tax paid by him on the goods: The provision does not contemplate registration of trade mark as a condition for attracting section 5AA of the APGST Act. A similar question was considered in Ponds (India) Ltd. v. State of Karnataka, 2006 146 STC 556and Bechu & Company,2003 132 STC 68