2000 (9) TMI 1035 - AT - VAT and Sales Tax

Summary

Issues:
Rate of tax on sales of milk powder without brand name "Aavin" by the assessee.

Analysis:
The revisions by the assessee were against the common order of the Appellate Tribunal regarding the rate of tax on sales of milk powder without the brand name "Aavin." The dispute revolved around whether the tax rate should be 5% or 10% for products sold without the brand name. The assessee contended that the correct rate should be 5%, citing an amendment to entry 103 of the First Schedule post-July 1, 1983, which focused on the dealer's product rather than just the commodity. The petitioner argued that irrespective of the presence of the brand name, if the dealer had a trademark, the product should be taxable under entry 103. However, the assessing authority and appellate authorities had levied tax at 10% even for products sold without the brand name "Aavin," leading to the dispute.

The petitioner's counsel argued that the turnover related to the sale of milk products without the brand name should be taxed at 5% based on the specific entry in the First Schedule. Reference was made to a previous case where goods sold without a brand name were not taxed under entry 103. The authorities below relied on section 76(1)(a) of the Trade and Merchandise Marks Act, 1958, to determine the application of the trademark. The petitioner contended that as the milk products were not packed with the trade name inscribed, they were sold without a brand name. However, the application of the trademark was interpreted to extend beyond just the physical packaging to include various aspects like invoices, catalogues, and advertisements, which all contained the "Aavin" trademark. This led the authorities to conclude that the goods sold were identifiable to the consumer with the brand name "Aavin."

The Tribunal upheld the decision of the authorities below, stating that the milk products fell under entry 103 of the First Schedule to the T.N.G.S.T. Act and were taxable at 10%. The Tribunal found no grounds for interference, leading to the dismissal of the revisions. The order was issued for punctual observance and execution by all concerned, with the petitions being dismissed.