IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 27466 of 2009(C) -------------------------- PETITIONER: --------------- SHRI MAHILA GHRIHA UDYOG LIJJAT PAPAD, ORACLE POINT,BANDRA (W) MUMBAI-400050, REP.BY ITS AUTHORIZED SIGNATORY LALITHA.S.,ACCOUNTANT. BY ADVS. SRI.G.KRISHNAKUMAR SMT.RESHMITHA M.A. SMT.PRIYA B SHENOY RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVT.SECRETARIAT,TRIVANDRUM. 2. SECRETARY TO THE GOVT., DEPARTMENT OF FINANCE & TAXATION, GOVT.SECRETARIAT,TRIVANDRUM. 3. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. SALES TAX OFFICER, FIRST CIRCLE,MATTANCHERRY,COCHIN-2. BY SRI. C.K. GOVINDAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rkc C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.27466 OF 2009 ------------------------------ Dated this the 26th day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is a Public Charitable Trust aimed at welfare of women and is engaged in running a small scale industrial unit of manufacturing 'Papads', which is a recognised unit of the Kerala Khadi and Village Industries Board. The petitioner is selling 'Papad' in the name “Lijjat Papad”. Contention of the petitioner is that as per Entry 43 to Schedule III of the Kerala General Sales Tax Act, Papad whether branded or unbranded, which are not chosen to register under the Trade And Merchandise Marks Act, 1958 are exempted from payment of tax. According to the petitioner they took registration with respect to the brand name under the Trade Marks Act, 1999 only during the year 2005, as evidenced from Ext.P2 certificate, dt. 4.6.2005. Therefore the contention is that they were liable to get exemption from payment of tax with respect to sale of the Papad marketed under the name “Lijjat Papad”. It is further contended that under the provisions of the Kerala Value Added Tax Act, 2003 (KVAT Act), Entry 36 of the 1st Schedule, sale of the item Papad is exempted from payment of tax. Therefore W.P.(C).27466/09-C 2 from 1.4.2005 onwards there is no tax liability for the petitioner. But without considering these aspects the petitioner was assessed with tax for the period prior to 1.4.2005 and the petitioner had approached this court on earlier occasion challenging such assessment. In Ext.P1 judgment this court directed the Government to consider representation submitted in this regard. It is further directed to defer realisation of amounts till a decision is taken on such representation. But the Government have rejected the claim holding that the item dealt with by the petitioner is a branded one and hence is liable for payment of sales tax. 2. There is a further contention that the unit run by them is registered with the Kerala Khadi and Village Industries Board and is entitled for exemption under the provisions of notifications issued under Section 10 of the KGST Act. Yet another contention raised by the petitioner is that even under Entry 43 of Schedule III what is made liable for tax is only branded items which hold registration under the Trade And Merchandise Marks Act, 1958 and with respect to any item having registration under the Trade Marks Act, 1999 is not included. Since the Trade And Merchandise Marks Act, 1958 stands repealed by Trade Marks Act, 1999, the product of the petitioner is not liable to be taxed, even if they hold registration under the Trade Marks Act. W.P.(C).27466/09-C 3 3. However, it is stated that, enumerating all the above contentions the petitioner had now submitted a detailed representation to the Chief Secretary of the State Government as evidenced from Ext.P9. Therefore the petitioner is making only a limited prayer for a direction to the appropriate authority in the State Government to consider the grievance as voiced in Ext.P9, and to take a decision within a time to be stipulated. 4. Having considered the facts and circumstances of the case and after hearing learned Government Pleader appearing on behalf of the respondents, I am of the view that the matter can be disposed of directing the State Government to take a decision on Ext.P9 representation. 5. Accordingly the writ petition is disposed of directing the 1st respondent to consider and pass final orders on Ext.P9 representation submitted by the petitioner, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 6. It is made clear that the decision taken as per Ext.P3 will not stand in the way of the Government re-considering the matter. C.K.ABDUL REHIM, JUDGE. okb