AI Drafter 
TaxTMI 
TaxTMI 
2014 (4) TMI 367
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....General Sales Tax Act, 1959 read with Serial No.48(iii) of Part-B of the Third Schedule to that Act? 2. Whether the finding of the Hon'ble Tribunal that the petitioners had sold branded food items is perverse and vitiated by taking into account irrelevant facts and the omission to take into account relevant facts on record before it ?" Tax Case (Revision).Nos.58, 59 and 60 of 2013:- "1. Whether the Hon'ble Tribunal has committed an error of law in holding that the sales of food items effected by the petitioners was taxable under Section 3(2) of the Tamil Nadu General Sales Tax Act, 1959 read with Serial No.4(iii) of Part E of the First Schedule to the TNGST Act instead of Section 3-D of that Act? 2. Whether the finding of the Hon'ble Tribunal that the petitioners had sold branded food items is perverse and vitiated by taking into account irrelevant facts and the omission to take into account relevant facts on record before it ?" 2. The assessee herein is a manufacturer and dealer in food preparation. It is stated that the assessee has a kitchen facility at Ambattur Industrial Estate, where, they prepared raw puffs, freeze them and transports the same to t....
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....he assessee seems to have made a further representation. Taking note of the nature of transaction, the Assessing Officer issued a pre-assessment notice for the assessment year 1998-99 that the claim for exemption under Section 3-D of the Tamil Nadu General Sales Tax Act, 1959 was not sustainable; that the assessee had not disclosed the items of food sold by them; in the absence, they would be dealt with under Part E of the First Schedule taxable at 16%. Thus, the assessee is stated to have produced a certificate from M/s.Food World Super Market Limited as to the nature of transaction done by the assessee; that the assessee fried and sold various types of curry puffs from 31st March 2002; the assessee stored the frozen curry puffs in their own freezer; the assessee had its own display cabinets and fryer at the outlets; their own staff did the process of frying their curry puffs in oil using their own fryer and served on their own paper plate, napkins and sauce for consumption by the customer at the outlet. In continuation of the certificate issued dated 25.08.2004, M/s.Food World Super Market Limited by letter dated 15th June, 2005 pointed out that the assessee supplied unbranded cu....
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....had not proved that the assessee had been selling branded items; consequently, the adoption of higher rate of tax at 16% was not sustainable. 11. As regards the applicability of Section 3-D of the Tamil Nadu General Sales Tax Act, 1959, the assessee had reported a turnover of Rs.18,42,342/- for the assessment year 1998-99; this was not taken into consideration by the Assessing Officer; in the circumstances, the First Appellate Authority directed the Assessing Officer to arrive at a total turnover after taking into consideration the purchase turnover and levy 2% tax if the total turnover exceeded Rs.25 lakhs. Thus, he remitted the matter back to the Assessing Officer. As far as assessment years 1999-2000 and 2000-01 was concerned, the assessments were set aside and remanded back to the Assessing Officer to levy tax under Section 3-D of the Tamil Nadu General Sales Tax Act, 1959. Aggrieved by this, the Revenue went on appeal before the Sales Tax Appellate Tribunal. 12. The Sales Tax Appellate Tribunal pointed out that the assessee had prepared vegetable and chicken puffs and other food items under the name "Old Chang Kee" and their registered place is at Ambattur Industrial Est....
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....of the assessee. 17. Learned counsel appearing for the assessee/Revision petitioner took us through the provisions of Section 3-D of the Tamil Nadu General Sales Tax Act as well as the Entries in the I Schedule and submitted that the Revenue does not deny the fact that for the assessment year 1998-99, its turnover was less than Rs.25 lakhs; being unbranded food items and sold in M/s.Food World Super Market Limited outlet, the same would satisfy that the item falling within the meaning of expression "any other eating house" as appear in Section 3-D(1) of the Tamil Nadu General Sales Tax Act; consequently, the rate of tax that the assessee would have to pay has to be in consonance with Section 3D(1) and the rate specified under Part A of the Ninth Schedule of the Tamil Nadu General Sales Tax Act. 18. He further took us through Part-C, Entry 12 Sub-clause (iii) relating to the food including preparations of vegetables, fruits, milk, cereals, flour (other than bread and bakery products) starch, birds-eggs, meat offals, animal blood, fish crustaceans and molluses sold without brand name attracting 8% and Part E Entry 4 dealing with food attracting rate at 16% and submitted that ex....
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....; that whenever there was a demand from a consumer, raw puff was fried by the staff of the assessee in the outlet and the customer is given the ready to eat puff. The assessee admitted that the puff was served with specially made sauce and napkin were also provided by the assessee. 24. It is an admitted fact that the price for the puff is collected only from M/s.Food World Super Market Limited and not from the ultimate consumer. The assessee, in its letter dated 18.06.2002 addressed to the Special Commissioner and Commissioner of Commercial Taxes, stated that the consumer collected the voucher from the cash counter and surrendered the same at their counter, the staff at their counter prepared, dressed and supplied the food products. From the materials available, we hold that the fact that the sale had taken place in the premises of M/s.Food World Super Market Limited outlet does not mean that the sale was in a eating house to fall under Section 3-D of the Tamil Nadu General Sales Tax Act. 25. We do not find any justifiable ground to accept the submission of the assessee that the sale in the outlet would be a sale in the eating house for the reason that the assessee did not di....
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....case of the assessee under Part E, Entry 4 (iii) of First Schedule of the Tamil Nadu General Sales Tax Act, 1959, here too, we find that the Sales Tax Appellate Tribunal had clearly pointed out that the assessee was selling its products under the name and style of "Old Chang Kee". The assessee pointed out that the mere fact of said brand being under the letter-head of assessee would not make the product being sold under the branded name. He pointed out that the said mark referred to the house name alone, hence, the Department committed serious error in stating that the item in question was sold under the brand name. Quite apart M/s.Food World Super Market Limited issued a certificate that the items sold were unbranded. As far as the reliance placed on certificate issued by M/s.Food World Super Market Limited is concerned, we do not find any justification to attach importance to the certificate, who are the purchasers from the assessee. 29. As far as the contention regarding the invoice or letter-head carrying name, hence, could not confer the items with any brand name is concerned, as is evident from the reading of the Entry in Part E of First Schedule, any food item or a prepar....
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....the petitioner had infringed its own trade mark; the mere fact that the goods were sold in the same place where other goods with brand name were sold or the invoices of the petitioner or trade mark were not material to attract Entry 103 of the First Schedule to the Tamil Nadu General Sales Tax Act, as Entry 103 of I Schedule was intended to cover the goods which were sold under any brand name and it did not apply to the sale of goods without brand name in the same place in which other goods with the brand name were sold. Thus, the place in which other goods sold would not be of relevance for the purpose of considering whether the item in question carried brand name. 32. As far as the decision (cited supra) relied on by the assessee is concerned, we do not find that the judgment would be of any assistance to the assessee herein for the reason that the decision rested on the wordings under Entry 103 of the I Schedule as it existed therein. 33. In the context of the facts available before this Court as stated in its representation before the Special Commissioner and as found by the Tribunal, we do not find any justifiable ground to extend the benefit of the judgment referred to ....