2009 (10) TMI 881

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....an SSI unit in Kerala. We have heard the learned Government Pleader appearing for the petitioner and Sri Santhosh P. Abraham, the counsel appearing for the respondent. The case has a history because after introduction of section 5(2) of the KGST Act providing for sales tax on commodities sold under "brand name" at the point of sale by brand name holder, the respondent-assessee filed O. P. No. 1144 of 2002 stating that the brand name used by them is not registered. They therefore sought declaration from this court that section 5(2) cannot be made applicable for sales under brand names which are not registered under the Trade and Merchandise Marks Act, 1958. However, a Division Bench of this court in the decision in Bechu Company v. Ass....

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....at the respondent itself has accounted purchase of rubber bushes and stickers bearing brand name "Regal" from a concern in Bombay. Even though the Tribunal was misled to believe that the manufacturer in Kerala also had right to use brand name, "Regal", there is no evidence and the respondent-assessee had no case before lower authorities that the manufacturer was producing and selling chairs in the market with the same brand name "Regal" which is the case put up by the assessee for the first time before the Tribunal. Further, the respondent published pamphlets with details of the range of products with same brand name numbering serially which would show that the brand name holder is the respondent and nowhere the name of manufacturer in Kera....

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.... used by the respondent, and that is the reason why they got stickers printed with brand name affixed on the chairs before marketing the same. In fact, not only brand name was affixed but rubber bushes were also fixed to the chairs after purchase by the respondent. Obviously, the respondent wanted to maintain a distinct quality for the product sold under their brand name and that is why improvements were made like fixing of rubber bushes to the chairs before sale by them. We are therefore of the view that after being unsuccessful in challenge against statutory provisions, the respondent distorted the facts and misled the Tribunal to get favourable orders. We therefore, allow the S. T. Revisions filed by the State by reversing the order of t....