Kerala High Court
M/S. Ojin Bakes & Restaurants ... vs State Of Kerala on 8 November, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2024:KER:83453
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
OT.REV NO. 64 OF 2023
AGAINST THE ORDER DATED 27.01.2021 IN TA(VAT) NO.173 OF 2018
OF APPELLATE TRIBUNAL ADDITIONAL BENCH,KOZHIKODE
REVISION PETITIONER/PETITIONER/ASSESSEE:
M/S. OJIN BAKES & RESTAURANTS VATTAKKINAR,
MEENCHANDA,CALICUT, REPRESENTED BY ITS MANAGING PARTNER
JUNAISE A.K, PIN - 673571
BY ADVS.
M.K.HAJARA
C.RAMACHANDRAN
HOWLATH JAHAN
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT [TAXES],
SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001
GP.SMT. RESMITHA RAMACHANDRAN
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH OT.Rev.62/2023, 63/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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OT.Rev Nos.64/2023,
62/2023, 63/2023
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
OT.REV NO. 62 OF 2023
AGAINST THE ORDER DATED 27.01.2021 IN TA(VAT) NO.172 OF 2018
OF APPELLATE TRIBUNAL ADDITIONAL BENCH,KOZHIKODE
REVISION PETITIONER/S:
M/S. OJIN BAKES & RESTAURANTS VATTAKKINAR,
MEENCHANDA,CALICUT, REPRESENTED BY ITS MANAGING PARTNER
JUNAISE A.K, PIN - 695010
BY ADVS.
M.K.HAJARA
C.RAMACHANDRAN
HOWLATH JAHAN
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT [TAXES] ,
SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001
GP. SMT. RESMITHA RAMACHANDRAN
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH OT.Rev.64/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83453
OT.Rev Nos.64/2023,
62/2023, 63/2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
OT.REV NO. 63 OF 2023
AGAINST THE ORDER DATED 27.01.2021 IN TA(VAT) NO.174 OF 2018
OF APPELLATE TRIBUNAL ADDITIONAL BENCH,KOZHIKODE
REVISION PETITIONER/RESPONDENT/ASSESSEE:
M/S.OJIN BAKES & RESTAURANTS VATTAKKINAR,
MEENCHANDA, CALICUT, REPRESENTED BY ITS MANAGING
PARTNER JUNAISE A.K, PIN - 673571
BY ADVS.
M.K.HAJARA
C.RAMACHANDRAN
HOWLATH JAHAN
RESPONDENT/PETITIONER/REVENUE:
STATE OF KERALA,
REPRESENTED BY GOVERNMENT PLEADER,
HIGH COURT OF KERALA, PIN - 682031
GP. SMT. RESMITHA RAMACHANDRAN
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON
08.11.2024, ALONG WITH OT.Rev.64/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:83453
OT.Rev Nos.64/2023,
62/2023, 63/2023
4
ORDER
Dr. A.K. Jayasankaran Nambiar, J.
As all these OT. Revisions raised a common issue, they are
taken together for consideration and disposed of by this common
order. The brief facts necessary for disposal of these OT. Revisions
are as follows:
The revision petitioner/assessee is a dealer in bakery
products and also conducts a restaurant. It is a partnership firm
that is registered as a dealer under the Kerala Value Added Tax Act,
2003. For the assessment years 2013-14, 2014-15 and 2015-16,
while completing the assessment against the assessee, the
assessing authority applied the higher rate of tax @ 14.5% on sales
effected by the revision petitioner of bakery products, which were
sold under the brand name 'Ojin' that was registered under the
Trade Marks Act, 1999. It was the view of the assessing authority
that, although the brand name was registered at the instance of a
sister company namely Ojin Foods Pvt. Ltd., inasmuch as the brand
name was registered in respect of bakery products also, the mere
fact that the brand name was not owned by the petitioner firm did
not make a difference. The higher rate of 14.5% was therefore
applied on the sales of bakery products effected by the petitioner.
2. In appeals preferred by the petitioner before the First
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Appellate Authority, the First Appellate Authority accepted the
contention of the petitioner that, while the application of the higher
rate of 14.5% was justified in relation to bakery products that it had
purchased from Ojin Foods Pvt. Ltd. and resold as such, in those
cases where it had merely purchased raw materials from Ojin Foods
Pvt. Ltd. but manufactured the bakery products by itself and then
sold the same under the brand name 'Ojin', the higher rate of tax
could not be applied since the brand name did not belong to them.
The Appellate Authority therefore restricted the application of the
higher rate of 14.5% only to those cases where the petitioner had
effected resales of products purchased from Ojin Foods Pvt. Ltd.,
and in respect of the other products which it had manufactured by
itself and sold under the same brand name, and the lower rate of
tax was applied.
3. The revenue carried the matter in appeals before the
Appellate Tribunal. The Appellate Tribunal found that there was no
justification for the First Appellate Authority to have made a
bifurcation between the sales made by the petitioner under the
brand name 'Ojin'. The finding of the Appellate Tribunal was that
so long as the bakery products sold by the petitioner were sold
under a brand name registered under the Trade Marks Act, 1999,
which they were, the higher rate of tax @ 14.5% would be
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attracted. While arriving at the said conclusion, the Appellate
Tribunal also noticed that they had decided the same issue in
respect of the petitioner herein for the assessment years 2009-10,
2010-11 and 2011-12, and the said decision of the Appellate
Tribunal for those assessment years had attained finality since the
petitioner had not pursued the matter further.
4. It is the common order of the Appellate Tribunal for the
assessment years 2013-14, 2014-15 and 2015-16 that is impugned
before us by the petitioner/assessee by raising the following
substantial question of law.
(i) Whether the Tribunal is justified in law
allowing the state appeal only on the ground that the
Revision Petitioner is a partner of registered
company under Trade Mark Act having brand name
'Ojin'.
(ii) Whether on the facts and circumstances
of the case the Appellate Tribunal was correct in
having hadl that the subject goods sold by the
Revision Petitioner would fall under Entry 11 of the
notification of SRO 82/2006.
(iii) Whether the appellate Tribunal went
wrong in interpreting section 48(2) of the Trade
Mark Act, 1999 with respect to the use of the Trade
Mark by any person other than the Proprietor with
consent shall be deemed to be used by the proprietor
himself.
(iv) Whether the appellate Tribunal is erred
in not considering the conditions stipulated in
Section 49 read with rule 89 of Trade Mark Act which
are mandatory for registration under Trade Mark
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Act.
(v) Whether on the fact and circumstances
of the case the appellate Tribunal is erred in not
appreciating the fact the Revision Petitioner is not
registered under the Trade Mark Act and the brand
name of 'Ojin' of partnership company would only
suffice for taxing at the higher rate.
5. We have heard Smt. Hajara M.K., the learned counsel
for the revision petitioner/assessee and Smt. Resmitha
Ramachandran, the learned Government Pleader appearing for the
respondent/State.
6. On a consideration of facts and submissions made
across the Bar, we are of the view that these OT.Revisions cannot
succeed. As already noticed, the very same issue was decided
against the petitioner/assessee by the Appellate Tribunal for the
earlier assessment years, and the petitioner/assesseee did not
choose to pursue the matter further for reasons best known to it. At
any rate, we do not see any valid ground to interfere with the
findings of the Appellate Tribunal since, admittedly, the
petitioner/assessee had sold the bakery products, whether sourced
as such from Ojin Foods Pvt. Ltd. or whether manufactured from
raw materials sourced from Ojin Foods Pvt. Ltd., under the brand
name 'Ojin', which was a brand name that was registered under the
Trade Marks Act. Entry 11 of the table under notification SRO
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No.82/2006 dated 21.01.2006, which deals with goods taxable @
14.5%, reads as follows: "Bakery products including biscuits of all
varieties, cakes, pastries, pizza and bread, sold under the brand
name registered under the Trade Marks Act, 1999 ". Therefore, the
only fact to be ascertained for the purpose of applying the higher
rate of tax of 14.5% is whether or not the bakery products sold by
the petitioner were sold under a brand name that was registered
under the Trade Marks Act, 1999. On this aspect there is no
dispute since, admittedly, the bakery products sold by the assessee
bore the brand name 'Ojin'. The only other issue that arises, based
on the judgment of a Division Bench of this Court in Kilban Foods
India (P) Ltd. v. The Commissioner Commercial Taxes & Anr.
[(2014) 22 KTR 307 (Ker)] as followed in Modern Food
Industries Ltd. v. State of Kerala [(2019) 27 KTR 249 (Ker)] is
whether the brand name 'Ojin' was registered in respect of
products, including the products that were sold by the petitioner
herein. In the aforementioned cases, the Court found that the
brand name that was registered did not cover the products that
were dealt with by the dealer in question, and under those
circumstances, although the products sold by the dealer were sold
under the brand name that was registered, the higher rate of tax
was held to be not applicable since the brand name registration did
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not cover the particular product that was sold by the dealer in
question.
On the facts of the case before us, the judgments of the
Division Bench referred to above are clearly distinguishable. This is
because the brand name 'Ojin' was registered under the Trade
Marks Act, specifically in respect of bakery products and also in
relation to various other products. We find therefore that, insofar
as the petitioner is concerned, the application of the higher rate of
14.5% to goods sold by him under the brand name 'Ojin' cannot be
avoided. We therefore do not see any reason to interfere with the
impugned order of the Appellate Tribunal. The OT. Revisions are
thus dismissed by answering the questions of law raised against the
assessee and in favour of the revenue.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
msp
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PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE ANNUAL RETURN IN FORM 10
DATED 10.06.2014
Annexure B TRUE COPY OF THE ANNUAL RETURN IN FORM 10 D
DATED 10.06.2014
Annexure C TRUE COPY OF THE ASSESSMENT ORDER NO:
32110719715/2013-14 DATED: 28.11.2015 ISSUED
BY THE COMMERCIAL TAX OFFICER, 2ND CIRCLE,
COMMERCIAL TAXES KOZHIKODE
Annexure D TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S OJIN FOODS PVT LIMITED ISSUED UNDER KVAT
RULES, 2005 DATED: 21.05.2007
Annexure E TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S. OJIN BAKES AND RESTAURANT ISSUED UNDER
KVAT RULES, 2005 DATED 29.10.2008
Annexure F TRUE COPY OF THE TRADE MARK REGISTRATION
CERTIFICATE DATED 18.05.2015
Annexure G TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY
COMMISSIONER (APPEALS) I, SGST DEPARTMENT
KOZHIKODE DATED 29.01.2018
Annexure H TRUE COPY OF THE CERTIFIED COPY OF APPELLATE
TRIBUNAL ADDITIONAL BENCH, KOZHIKODE IN TA
(VAT) NOS.172/2018, 173/2018 & 174/2018
DATED: 27.01.2021
Annexure I TRUE COPY OF THE REVIEW PETITION ORDER RP
13/2022,14/2022 & 15/2022 IN TA (VAT)
172/2018, 173/2018 & 174/2018 DATED
03.08.2023
Annexure J TRUE COPY OF SALES BILLS DATED 11.11.2013
Annexure K TRUE COPY OF THE REVENUE RECOVERY NOTICE IN
FORM NO.1 DATED 11.04.2023
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PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE ANNUAL RETURN DATED
02.07.2016
Annexure B TRUE COPY OF THE AUDIT REPORT DATED
27.12.2016
Annexure C TRUE COPY OF THE ASSESSMENT ORDER NO:
32110719715/2015-16 DATED: 25.01.2017 ISSUED
BY THE COMMERCIAL TAX OFFICER, 2ND CIRCLE,
COMMERCIAL TAXES KOZHIKODE
Annexure D TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S OJIN FOODS PVT LIMITED ISSUED UNDER KVAT
RULES, 2005 DATED: 21.05.2007
Annexure E TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S. OJIN BAKES AND RESTAURANT ISSUED UNDER
KVAT RULES, 2005 DATED: 29.10.2008
Annexure F TRUE COPY OF THE TRADE MARK REGISTRATION
CERTIFICATE DATED 18.05.2015
Annexure G TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY
COMMISSIONER (APPEALS) I, SGST DEPARTMENT
KOZHIKODE DATED 29.01.2018
Annexure H TRUE COPY OF THE ORDER OF APPELLATE TRIBUNAL
ADDITIONAL BENCH, KOZHIKODE IN TA (VAT)
NOS.172/2018,173/2018 & 174/2018 DATED:
27.01.2021
Annexure I TRUE COPY OF THE REVIEW PETITION ORDER RP
13/2022,14/2022 & 15/2022 IN TA (VAT)
172/2018, 173/2018 & 174/2018 DATED
03.08.2023
Annexure J TRUE COPY OF THE REVENUE RECOVERY NOTICE IN
FORM NO.1 DATED: 11.04.2023
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PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE ANNUAL RETURN DATED
03.06.2015
Annexure B TRUE COPY OF THE AUDIT REPORT DATED
06.02.2016
Annexure C TRUE COPY OF THE ASSESSMENT ORDER
NO:32110719715/2014-15 DATED: 24.01.2017
ISSUED BY THE COMMERCIAL TAX OFFICER, 2ND
CIRCLE, COMMERCIAL TAXES KOZHIKODE
Annexure D TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S OJIN FOODS PVT LIMITED ISSUED UNDER KVAT
RULES, 2005 DATED: 21.05.2007
Annexure E TRUE COPY OF THE REGISTRATION CERTIFICATE OF
M/S. OJIN BAKES AND RESTAURANT ISSUED UNDER
KVAT RULES, 2005 DATED: 29.10.2008
Annexure F TINE COPY OF THE TRADE MARK REGISTRATION
CERTIFICATE DATED 18.05.2015
Annexure G TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY
COMMISSIONER (APPEALS)I, SGST DEPARTMENT
KOZHIKODE DATED 29.01.2018
Annexure H TRUE COPY OF THE CERTIFIED COPY OF ORDER OF
APPELLATE TRIBUNAL ADDITIONAL BENCH,
KOZHIKODE IN TA (VAT) NOS.172/2018,173/2018 &
174/2018 DATED: 27.01.2021
Annexure I TRUE COPY OF THE REVIEW PETITION ORDER RP
13/2022,14/2022 & 15/2022 IN TA OVAT)
172/2018, 173/2018 & 174/2018 DATED
03.08.2023
Annexure J TRUE COPY OF THE REVENUE RECOVERY NOTICE IN
FORM NO. 1 DATED 11.04.2023
