IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 ST.Rev..No. 266 of 2010() ------------------------- AGAINST THE ORDER IN TA.320/2009 DATED 29/03/2010 of S.T.A.T.ADDL.BENCH, ERNAKULAM .................... REVISION PETITIONER / RESPONDENT / REVENUE --------------------------------------- STATE OF KERALA, REP.BY DEPUTY COMMISSIONER(LAW), COMMERCIAL TAXES, ERNAKULAM. BY SHRI.MUHAMMED RAFIK, GOVERNMENT PLEADER RESPONDENT(S): / APPELLANT / ASSESSEE --------------- M/S.ORDIAN HEALTH CARE (P) LTD, NAMBOOTHIRI MADATHIL CENTRE, PATHADIPPALAM EDAPPALLY-682024 ADV. SRI.A.KUMAR THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STREV. NO.266/2010 APPENDIX REVISION PETITIONER'S EXHIBITS ANNEXURE-A : COPY OF ASSESSMENT ORDER DATED 11/12/2006. ANNEXURE-B : COPY OF ORDER OF THE APPELLATE ASSISTANT COMMISSIONER DATED 17/01/2009. ANNEXURE-C : COPY OF ORDER OF THE STAT DATED 29/03/2010. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... S.T.Rev.No.266 of 2010 .................................................................... Dated this the 11th day of July, 2011. J U D G M E N T Ramachandran Nair, J. This Revision case is filed by the State challenging the order of the Tribunal in favour of the respondent. The question raised is whether the drugs marketed by the respondent under the name “ordain” constitute sale under brand name falling under Section 5(2) of the Act attracting tax at the point of sale by the respondent, which otherwise would be second sale. During hearing, learned Government Pleader pointed out the decision of this Court in S.D.Pharmacy's case (S.T.Rev.No.55/2010), where we have considered and decided a similar issue. In the case decided, copies of lables were also available. In this case, we do not think even the Tribunal had occasion to see how the name is used in the product. In view of the subsequent decision in the same matter, we feel the Tribunal should reconsider the case in the light of the S.T.Rev.No.266/2010 2 judgment above referred. Learned counsel for the respondent also pointed out that the respondent had challenged the reopening of the assessment, which was not decided by the Tribunal because of the decision on merit in favour of the respondent. Therefore, the Tribunal should consider this issue as well. However, we make it clear that even if assessment is barred by limitation, since the issue is arising for other years the Tribunal should decide the question raised on merits with reference to the facts and statutory provision explained in the decision of this Court above referred. The Tribunal is directed to decide the matter afresh within three months from the date of receipt of a copy of this judgment. This S.T.Revision case is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg