9911796707
TMI Blog1991 (2) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ds manufactured by the applicant were first sold on April 17, 1985. On an application being made by the applicant, a certificate of eligibility was granted to the applicant for the period from April 17, 1985 to March 31, 1986, by the respondent No. 4, the concerned Assistant Commissioner of Commercial Taxes by an order passed on June 23, 1986. The certificate of eligibility under the Act was renewed for a further period from April 1, 1986 to March 31, 1987, by another order passed on October 1, 1986. The applicant applied for renewal of eligibility certificate for the period from April 1, 1987 to March 31, 1988. That application for renewal of E.C. is still pending before the Assistant Commissioner of Commercial Taxes, Dharmatala Circle, Calcutta. On February 26, 1988, the respondent No. 2, the Additional Commissioner of Commercial Taxes, West Bengal, issued a notice to the applicant in form No. IX, proposing to pass an order against the applicant for declaring the certificate of eligibility as invalid ab initio. The contents of that notice were as follows: "Whereas, it has come to my notice that the dealer is a manufacturer of 'ayurvedic oil' under the brand name 'Banphool' and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned advocate for the applicant, has challenged the impugned order dated August 12, 1988, on several grounds. The first ground taken by Mr. Roy Chowdhury is that the respondent No. 2, the Additional Commissioner of Commercial Taxes, had no competence, authority or jurisdiction to cancel the E.C. with retrospective effect in exercise of his alleged revisional powers. A brief resume of the provisions of the Act as well as the West Bengal Sales Tax Rules, 1954, is necessary for understanding this contention of Mr. Roy Chowdhury. Under section 3 of the Act, the State Government is to prescribe an authority, called the prescribed authority, for carrying out the purposes of the Act. The State Government or the prescribed authority may appoint persons to assist the prescribed authority. Section 3(3) of the Act is to the effect that any powers, duties or functions of the prescribed authority may be delegated to the persons appointed under sub-section (2) in accordance with such rules as may be prescribed. Rule 4 of the West Bengal Sales Tax Rules, 1954 (hereinafter mentioned as "the Rules" for the sake of brevity) is to the effect that the prescribed authority may, by general or sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se suo motu power of revision in respect of the E.C. granted in exercise of power under section 4AA of the Act. After careful consideration of the provisions of the Act and the Rules, we are unable to accept this contention of Mr. Roy Chowdhury. The power granted to the Assistant Commissioner to declare any E.C. as invalid under Notification No. 1177-F.T. dated March 31, 1983, is different from and in addition to the power exercisable under section 12(3)(a) of the Act. The suo motu power of revision under section 12(3)(a) of the Act can be exercised by the prescribed authority in respect of any order passed by a person appointed under section 3 of the Act to assist the prescribed authority. The order for granting E.C. was passed by an Assistant Commissioner, who is a person appointed by the State Government to assist the prescribed authority. Under rule 33(3A) of the Rules, the power of suo motu revision under section 12(3)(a) of the Act may be exercised by the Additional Commissioner, if so directed by the prescribed authority, in respect of orders by an Assistant Commissioner. This rule 33(3A) has been framed in accordance with the provision of section 3(3) of the Act. On the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a reference to Notification No. 1809-F.T. dated April 1, 1976, wherein there is no provision debarring a new industrial unit from using the trade-mark or the brand name of any product of an existing industrial unit. It is no doubt true that in the order dated June 23, 1986, there is mention of previous Notification No. 1809-F.T. dated April 1, 1976 under which E.Cs. were previously granted, before issue of Notification No. 1177-F.T. dated March 31, 1983, by which the applicant is governed. The learned State Representative has contended that as new forms were not available, the old forms were used by the learned Assistant Commissioner at the time of granting of E.C. by the order passed on June 23, 1986. We are to accept this contention of the learned State Representative, when it is not the case of the applicant that he is to be governed by the Notification No. 1809-F.T. dated April 1, 1976 and not by the subsequent Notification No. 1177-F.T. dated March 31, 1983. The mention of Notification No. 1809F.T. dated April 1, 1976 is thus, a mistake, which should not go to the benefit of the applicant. Mr. Roy Chowdhury took exception to the issuance of the notice in form IX as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ayurvedic Products uses the trade mark under the authority of M/s. Sharma Chemical Works. The case of the respondents in their affidavitin-opposition is that "Banphool" is the brand name or trade mark of the ayurvedic oil of Sharma Chemical Works and that the name "Banphool" is a registered trademark and the relevant registration No. is 393892. This case in the affidavit-inopposition is borne out by the cartons shown to us today by the learned State Representative as well as xerox copies of one deed of partnership dated July 2, 1982 between Shri Biswanath Sharma, Shri Prabhunath Sharma, Shri Om Nath Sharma and Shri Sew Sankar Sharma in respect of Sharma Chemical Works as well as xerox copy of an agreement dated January 2, 1985, between M/s. Sharma Chemical Works and M/s. Sahara Ayurvedic Products, the applicant, showing that the applicant will make an annual payment of Rs. 10,000 to M/s. Sharma Chemical Works, being the royalty for using and utilising the trade name "Banphool" under the authority of M/s. Sharma Chemical Works. In the circumstances, the contention of the applicant that the mark "Banphool" is not a trade-mark or a brand name cannot be accepted. Mr. Roy Chowdhury has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
