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TMI Blog2015 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... November 2014 and filed monthly returns and paid VAT 2% under Section 7(1)(b) of the Tamil Nadu Value Added Tax Act,2006 (in short, TNVAT Act, 2006). 2. According to the petitioner, the respondent issued a notice, dated 03.12.2014 under Section 25(1) of TNVAT Act, 2006 registration No.2132496, thereby it is evident that the petitioner is selling only branded food, which is liable for levy of tax at 14.5% and further stated that the petitioner has wrongly paid tax at 2% on their entire sale of food stuff. According to the petitioner, the term "Zaitoon" has to be construed only as a House mark (house name) and not as a product mark (brand name) and the name "Zaitoon" is not appearing in any of their products, but used only in the name boards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order assessing turnover at 14.5%.It is stated that the impugned order has been passed only after issuing pre-revision notice dated 3.12.2014 and after considering the objections filed on 18.12.2014.The petitioner got registration under Trade Marks Act having Registration No.2132496 by which it is evident that they are selling only branded food items taxable at 14.5% as per Section 7(1)(a) of TNVAT Act, 2006.The contention of the petitioner that Zaitoon must be construed as a "house mark" (house name) and not as a product mark (brand name), is not acceptable since the food items that are prepared and sold in the hotel which was having a house mark are synonymously bear the trade made on their products. Therefore, the food items sold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot selling any branded food and there is no package, seal, trade name or bar code on the prepared food and hence, the assessment of turnover at 14.5% treating the same as sale of branded food and drinks under Section 7(1) of TNVAT Act, 2006 by the respondent, is ex-facie illegal and arbitrary; ii) that the term "Zaitoon" has to be construed only as a House Mark" (house name) and not as a "produce mark" (brand name) and it is used only in the name boards and no trade mark is provided on the package or on food items that are prepared and sold in the restaurant and hence, the food items cannot be treated as branded food items to attract levy of tax at 14.5%; iii)that the petitioner has made application on 20.4.2011 for registration of restau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act and selling only branded food prepared by them which attracts tax at 14.5% as per the provisions of the TNVAT Act, 2006 and the respondent having served the pre-revisional notice, dated 3.12.2014 and after considering the objections filed by the petitioner on 18.12.2014, has passed the impugned order, which requires no interference and hence, the learned counsel sought for dismissal of the writ petition. 8. It is not in dispute that the petitioner got Trade Mark Registration No.213496.The provisions of the Trade Marks Act, 1999 as well as Rules thereof would apply to the petitioner. The Fourth Schedule of the Trade Marks Rules, 2002 envisages 'Classification of Goods and Services-Name of the Classes", wherein, though Item Nos.29 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of the petitioner that they got only registration towards restaurant and it has to be construed as 'House Mark' and not as a 'Product Mark' and thereby, whatever they prepared food items cannot be considered as branded items since such foods items were only being consumed inside the restaurant. It is admitted fact that the petitioner is only serving the food which are exclusively prepared by them and a customer who enters the restaurant of the petitioner by recognizing the name "Zaitoon", he would be ensured that the food items prepared by the petitioner Zaitoon Restaurant alone would be served to him. If the petitioner is serving the food items which are not prepared by it, the matter is altogether different and there would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2006, as per which, the authority is empowered to determine the tax payable by the dealer to the best of its judgment.Therefore, as per Section 3(2) of the TNVAT Act, 2006, the petitioner is liable to pay tax at 14.5%. 11. It is also contended on behalf of the petitioner that VAT is leviable on goods only if purchase and sales or consignment takes place within the State and as per Amendment of Article 269 of the Constitution (Forty-Sixth) Amendment, 1982, the service of meals whether in a hotel or restaurant does not constitute a sale of food for the purpose of levy of sales tax, but must be regarded as the rendering of service in the satisfaction of a human need or ministering to the bodily want of human beings, it would not make any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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