Dmt 1 sta21-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGNAL CIVIL JURISDICTION SALES TAX APPLICATION NO. 21 OF 2011 IN REFERENCE APPLICATION NO. 98 OF 2010 National Dairy Development Board. .. Applicant. versus The Commissioner of Sales Tax. .. Respondent. ..... Mr. P.V. Surte with Mr. Subhash P. Surte i/by P.V. Surte & Co. for the Applicant. Mr. S.K. Nair A Panel Counsel for the Respondent. ...... CORAM : DR.D.Y.CHANDRACHUD & A. A. SAYED, JJ. 09 DECEMBER 2011. P.C. : Dmt 2 sta21-11 The Sales Tax Application has been taken out upon an order passed by the Sales Tax Tribunal declining to make a reference to this Court. The dispute in the present case relates to Assessment Year 1991-1992. The issue before the Court is as to whether the Applicant was entitled to a draw- back under Rule 42H of the Bombay Sales Tax Rules, 1959. This would depend upon the construction which is required to be placed on the provisions of Section 2(26) of the Act read with the explanation which adverts to a seller holding a trade mark. The Tribunal has taken the view that holding a trade ‘ mark must refer to holding a registered trade mark. In the ’ ‘ ’ present case, the mark of the Applicant was registered on 31 October 1996 with effect from 12 July 1988. We are of the view that the Tribunal was not justified in rejecting the application for a reference which raises a substantial question of law which would warrant a decision by this Court. We, accordingly, dispose of the application by directing the Tribunal to sumit the following question of law for reference to this Court. Dmt 3 sta21-11 (i) Whether on a proper interpretation of section 2(26) r/w. the Explanation thereto, the Tribunal was justified in holding that the phrase Trade Mark ‘ ’ refers to a Registered Trade Mark and not to an ‘ ’ Unregistered Trade Mark ? ‘ ’ ” 2. The Sales Tax Application shall accordingly stand disposed of in these terms. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.)