TaxTMI 
TaxTMI 
TaxTMI 
2011 (6) TMI 693
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....logo under section 5(2) of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act", for short). 2. We have heard learned counsel appearing for the assessee and learned Government Pleader for the State. 3. The assessee with 70 years of track record is a big name in ayurvedic medicines and products which are marketed within the State and in other parts of the country under the name and style S.D. Pharmacy. The assessee is a partnership concern engaged only in wholesale marketing of the products, which are manufactured by two sister concerns, namely, M/s. SD Pharmacy Pvt. Ltd. and M/s. Oriental Extractions Pvt. Ltd. There is no dispute that these private limited companies are under the control of same persons, who consti....
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....oner (Assessment) [2003] 132 STC 68 (Ker) not only rejected the same but also held that even registration of trade mark, logo or brand name under the Trade and Merchandise Marks Act is not compulsory for application of section 5(2) of the Act. 6. When the assessment was taken up for the year 2003-04, the assessing officer rejected the second sale exemption claimed by the assessee and made assessment treating the assessee's sales in brand name as the first sales under section 5(2) of the Act. Even though the first appeal was dismissed, the Tribunal on second appeal held that since the amendment by the Kerala Finance Act, 2004 adding the term "brand name" under clause (viaa) to section 2 of the Act came into force only in the next year (....
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....ect from April 1, 2004. "(viaa) 'Brand name' means a name or trade mark whether registered or not registered under the Trade Marks Act, 1999 (Central Act 47 of 1999) and includes a name or mark such as symbol, monogram, label, signature or intended words or any writing which is used in relation to a product for the purpose of indicating or so as to indicate, a connection in the course of trade between the product and a dealer using such name or mark with or without any indication of the said dealer." 7. The learned Government Pleader referred to the recent judgment rendered by us in S.T. Rev. No. 67 of 2011 (Elite Foods (P.) Ltd. v. State of Kerala [2012] 52 VST 241 (Ker)), wherein we have held that the purpose of section 5(2) its....
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....e. 9. We are completely in agreement with the contention of the learned Government Pleader that the very same products are sold by all the ayurvedic product manufacturers in the trade names developed by them. For example Chyavanaprasam is manufactured and marketed by all the ayurvedic product manufacturers like the assessee, Kottakkal Arya Vaidyasala, Vaidyaretnam and by public limited companies like Dabour India Limited. The customers go by the reputation of the manufacturers and the only way for them to identify the products with the manufacturers is the trade name and logo. It is only to help consumers to identify the products with the manufacturers trade mark and logo are inscribed on every product pack. Therefore the use of generic na....
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.... market. On the order hand, the manufacturing companies under the control of the partners of the assessee-firm manufacture and sell the entire products to the assessee-firm, which introduces the products in the market by selling the same to franchisees for retail sales. Therefore, real wholesale at market price is made by the assessee-firm, which is intended to be assessed as deemed first sales only to levy tax on real first sale turnover. Even though the assessee's counsel contended that only a normal trade margin of 20 per cent is charged by the assessee after purchasing from the sister concerns, we do not think we should look into it because in the decision above referred in S.T. Rev. No. 67 of 2011 (Elite Foods (P.) Ltd. v. State of....
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....ract liability under section 5(2) of the Act; and on going through the definition of brand name what we notice is that the Legislature has in fact clarified/expanded the meaning of trade mark as well. In our view, even without any definition clause, the normal meaning of brand name or trade mark is to be understood with reference to the trade practice of the manufacturers. The Legislature probably wanted to avoid litigations for which a detailed definition was introduced to the term brand name contained in section 5(2) of the Act, which in our view does not give any additional meaning to charging section 5(2) as it originally stood. We therefore hold that the amendment to section 2 introducing "brand name" under clause (viaa) is only explan....