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TMI Blog2016 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... eting need from time to time. The price of clinker will be linked to the price of cement in the Kerala market and will be reviewed every six months on this basis. The formula for such price adjustments will be as detailed in Annexure 'A' attached to and forming part of this Agreement. For the sake of easier operation of the contract it is agreed that a specific quantify of clinker supplied by ACC for any six months period will have a co-relation with the price at which the cement will be handed over to ACC for sale during the said period of six months. Any shortfall on either side in the matter of supply of clinker from ACC and supply of cement by Cocem would have to be made good at the already agreed rate prior to finalisation of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not use ACC's Trade Marks/brand names in any form after the termination or expiry of this Agreement. 2. On the basis of the aforesaid Agreement, the appellant - assessee put forth his stand before the Assessing Officer that his case was covered under Section 5(2) of the Kerala General Sales Tax Act, 1963 (for brevity, "the Act") and, therefore, the sale effected by the Cochin Cement Limited should be treated as the first sale. The Assessing Officer, on the basis of Intelligence Report and other materials brought on record, came to the conclusion that the Cochin Cement Limited had been manufacturing the cement and handing over the same to the assessee. On a perusal of the impugned orders, it is noticeable that the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee. Entire goods manufactured are delivered at Assessee's depots and is being marketed by Assessee in its brand name. And all the sales effected through depots of the Assessee have alone being assessed u/s 5(2) of KGST Act newly amended. Only those cement which has been manufactured by Cochin Cement Ltd. and sold by Assessee in its brand name revealed and accounted in the Assessee's books of accounts has been brought to tax by this order. In other words, if Cochin Cement Ltd. is selling goods to others by itself, the question of coming those transaction into the books of accounts of the Assessee does not arise at all. In the circumstances, the contention of the Assessee that Cochin Cement Ltd. is marketing cement to the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment has received the stamp of approval by the higher authorities as well as by the High Court. In this backdrop, we may proceed to analyse the statutory scheme. Section 5(1) of the Act, which is the charging Section, reads as follows:- "Every dealer (other than a casual trade or agent of an non-resident dealer) whose total turnover for a year is not less than two lakh rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover of that year." 4. Mr. S. Ganesh, learned senior counsel appearing for the appellant, has laid immense emphasis on Section 5(2), which reads thus:- "Notwithstanding anything contained in this Act in respect [of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed its intention to treat the sale by the brand name holder or the trade mark holder as the first sale. In the case of Cryptom Confectioneries Pvt. Ltd. Vs. State of Kerala (2014) 73 VST 498 (SC, Section 5(2A) came up for consideration and a two-Judge Bench, analysing the anatomy of the provision, has laid down thus:- "The aforesaid sub-section commences with a non obstante clause i.e., irrespective of Section 5(1) of the Act or any other provision under the Act. The said sub-section speaks of a sale made by a brand name holder of the trade mark holder within the State. The Legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel, would submit that in the said case, there has been no consideration of the concepts like brand name holder and trade mark holder and, therefore, the said decision should not be treated as a precedent. On the basis of the aforesaid submission, Mr. Ganesh contends that the said decision requires reconsideration and this Court should refer it to a larger Bench. Mr. Ganesh further submits that the ratio of the decision has to be understood in the background of the facts of the case and a decision is an authority for what is actually decides, not what logically follows from it. According to him, as the relevant provisions have not been construed, it cannot be regarded as a binding precedent. 9. Needless to say, the proposition canvassed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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