KAIL LTD. (FORMERLY KITCHEN APPLIANCES- INDIA LTD.)versusSTATE OF KERALA REPRESENTED THRGH. JT. COMMR. (LAW)

                        [2016] 5 S.C.R. 865                              865


KAIL LTD. (FORMERLY KITCHEN APPLIANCES- INDIA LTD.)                      A
                                 v.
                  STATE OF KERALA
         REPRESENTED THRGH. JT. COMMR. (LAW)
               (Civil Appeal Nos. 4283-4284 of2013)                       B
                        OCTOBER 26, 2016
      [SHIVA KIRTI SINGH AND R. K. AGRAWAL, JJ.]
       Kera/a General Sales Tax Act, 1963 - s.5(2) - Levy of tax on
sale of goods - Sale of home appliances by appellant company
under brand name 'S' - Appellant company purchased products
                                                                          c
from company 'V', holding company which brings the goods to the
State on stock transfer and sell entire goods to its subsidiary,
appellant company - Claim of second sale exemption by appellant
- Case of the appellant-Company that it is not the holder of the
brand name 'S' - Assessing authority held that appellant company          D
is the brand name holder of 'S' and thus, turnover of items sold
under 'S' brand name to be treated as first sale uls. 5(2) - Ti·ibunal
held in favour of the appellant company, whereas High Court upheld
the order passed by the Assessing Authority - On appeal, held:
Under s. 5 (2) if the conditions are satisfied that sale of the
                                                                          E
manufactured goods is under a trade mark or brand name and is
within the State, the sale by the brand name holder or the trade
mark holder shall be the first sale for the purposes of the KGST Act
- Objective of s. 5(2) is to assess the sale of branded goods by the
brand name holder to the market and the inter se sale between the
brand name holders is not intended to be covered bys. 5(2) - When         F
the goods are sold under the brand name, necessarily, it has to
assume that the marketing company is the holder of the brand name
or has the right to market the products in the brand name because,
it is the first company introducing the products in the market - On
facts, marketing is actually done by fully owned subsidiary and/or
                                                                          G
a group company of the holding company, which was allowed to
use the brand name 'S' - Thus, tax invoking s. 5(2) rightly levied on
the appella111-Co111pany for the relevant period since it is proved
 beyond reasonable doubt that the appellant-9pmpany is the brand
 name holder of ..S" - Order passed by the High Court upheld.
                                                                          H
                                 865
866            SUPREME COURT REPORTS                        [~O 16] 5 S.C.R.




A          Dismissing the appeals, the Court
            HELD: 1.1 It is clear from the language of s. 5(2) of the
      Kerala General Sales Tax Act, 1963 that in order to attract sub-
      section (2) of Section 5, the following conditions are to be
      satisfied: (i) Sale of manufactured goods other than tea; (ii) Sale
8     of the said goods is under a trade mark or brand name; and (iii)
      The sale is by the brand name holder or the trade mark holder
      within the State. If all the said conditions are satisfied, the sale by
      the brand name holder or the trade mark holder shall be the first
      sale for the purposes of the KGST Act. Applying the conditions
      to be satisfied to attract section 5(2), to the facts of the instant
c     case, it is an admitted fact that the goods sold by the appellant-
      Com pany arc manufactured goods other than tea. The first
      condition is satisfied. The next condition to be satisfied is that
      the sale of goods is under a trade mark or brand name. It is an
      undisputed fact that the manufactured goods sold by the appellant-
D     Company were home appliances under the brand name "S". Thus,
      the second condition is also satisfied. The last condition to be
      satisfied in order to attract section 5(2) of the KGST Act is that
      the sale is by the brand name holder or trade mark holder within
      the State and whether the appellant-Company is a holder of the
      brand name "S". [Paras 9, 10] [871-F-G; 872-A-C]
E
           1.2 When a product is marketed under a brand name, the
      Assessing Authority is entitled to assume that the sale is by the
      holder of the brand name or by a person, who is entitled to use
      the brand name in India. Apart from this, in the instant case, the
      marketing is actually done by fully owned subsidiary and/or a
F     group company of the holding company, which was allowed to use
      the brand name "S". Brand name has no relevance when the
      products are manufactured and sold in bulk by the holding
      company to its subsidiary company for marketing. However, the
      brand name assumes significance when goods are marketed with
G     publicity in the market. Moreover, when the goods are sold under
      the brand name, necessarily, it has to assume that the marketing
      company is the holder of the brand name or has the right to market
      the products in the brand name because, it is the first company
      introducing the products in the market. The objective of Sec 5(2)
      of KGST Act is to assess the sale of branded goods by the brand
H
KAIL LTD. (FORMERLY KITCHEN APPLIANCES INDIA LTD.)                          867
                v. STATE OF KERALA

name holder to the market and the inter se sale between the                 A
brand name holders is not intended to be covered by Sec. 5(2) of
the KGST Act. However, if the sale between the holding company
and the subsidiary company, both having the right to use the same
brand name, is at realistic price and the marketing company
namely, the appellant-Company charged only usual margins in
                                                                             B
the trade, then there is no scope for ignoring the first sale,
particularly, when the first seller was also the holder of the brand
name and was free to market the products in the brand name.
However, the evidence on record shows that the margin charged
by the appellant-Company while making the further sale of
product is unusually high. So the inter se sale between the groups           c
of companies under the control of the same family was only to
reduce tax liability and was rightly ignored by the assessing officer
by levying tax under Section 5(2) of the KGST Act. [Paras 13, 14,
15] [875-A-F]
      1.3 The tax invoking Section 5(2) of the KGST Act was rightly          D
levied on the appellant-Company for the relevant period as it is
proved beyond reasonable doubt that the appellant-Company is
the brand name holder of "S". The decisions rendered by the
High Court in revision petition and review petition are upheld.
[Para 16) [875-G I
                                                                             E
      Cryptm Confectioneries (P) Ltd. v. State of Kera/a (2015)
      13 sec 492 - referred to.
                          Case Law Reference
      c2015) 13 sec 492           referred to            Para 13
                                                                             F
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4283-
4284 of2013.
     From the Judgment and Order dated 25.05.2010 in Sales Tax
Revision No. 36 of2007 and 16.08.2011 in R. P. No. 337 of201 I in S. T.
Rev. No. 36 of2007 of the High Court ofKerala at Ernakulam.
                                                                             G
      C. A. Sundaram, Sr. Adv., Mano Nair, Tanuj Bhushan, S. S. Shroff, .
lshan Gaur, Zafar Inayat, Ms. Rohini Musa, Abhishek Gupta, Advs. for
the Appellant.
     K. Radhakrishnan, Sr. Adv., Jogy Scaria, Mrs. Beena Victor,
Reegans B., Advs. for the Respondent.                                        H
868            SUPREME COURT REPORTS                            [2016] 5 S.C.R.



A          The Judgment of the Court was delivered by
            R.K.AGRAWAL, J. I. Challenge in the above said appeals is to
      the legality of the impugned judgments and orders dated 25.05.20 I 0 and
      16.08.2011 in ST REV No. 36 of 2007 and RP No. 337 of 2011
      respectively rendered by a Division Bench of the High Court ofKerala
B     at Ernakulam.
            2. Factual position in a nutshell is as follows:-
            a) The above said appeals relate to the assessment under the Kerala
      General Sales Tax Act, 1963 (in short 'the KGST Act') for the year
      1999-2000. KAIL Ltd.-the appellant-Company is a dealer in home
C     appliances at Ernakulam having registered office at Bangalore.
            b) The issue is with regard to the tax under Section 5(2) of the
      KGST Act on sales turnover of home appliances for Rs. 27,27,20,230/-
      on the ground that the appellant-Company had sold the home appliances
      under the brand name "Sansui". To put it more clear, the Assessing
D     Authority- the respondent-State, while scrutinizing the second sale
      exemption as claimed by the appellant-Company, found that it is the
      brand name holder of"Sansui" and hence the turnover of the items sold
      under "Sansui" brand name will be treated as first sale under Section
      5(2) of the KGST Act.

E           c) The appellant-Company was served with a show cause notice
      dated 15.02.2004 by the Office of the Assistant Commissioner (Assmt.),
      Ernakulam against which a reply was filed on 15.03 .2004 denying the
      averments of the notice stating that the appellant-Company is not the
      holder of the brand name "Sansui" indicating that the said brand name is
      owned by Mis Sansui Electric Co. Ltd. Japan. The Assessing Authority,
F     vide order dated 22.03.2004, dismissed the claim of the appellant-Company
      with regard to the brand name holder. Aggrieved by the order dated
      22.03.2004, the appellant-Company went in appeal before the Deputy
      Commissioner (Appeals), Ernakulam along with an application for stay.
      The Deputy Commissioner (Appeals), vide order dated 30.09.2004,
G     dismissed the appeal filed by the appellant-Company being Sales Tax
      Appeal No. 530 of2004.
            d)Aggrieved by the order dated 30.09.2004, the appellant-Company
      approached the Kerala Sales Tax Appellate Tribunal (in short 'the
      Tribunal') by filing T.A. No. 736 of2004 which was decided in favour of
      the appellant-Company vide order dated 12.04.2006.
H
KAlL LTD. (FORMERLY KITCHEN APPLIANCES lNDIA LTD.)                           869
        v. STATE OF KERALA [R.K. AGRAWAL, J.]

      e) The respondent-State, aggrieved by the abovesaid order,             A
preferred a revision petition being ST REV No. 36 of2007 before the
Kerala High Court. A Division Bench of the High Court, vide order
dated 25.05.2010, allowed the revision filed by the respondent-State
holding that the appellant-Company is the brand name holder of"Sansui".
Feeling aggrieved, the appellant-Company filed a Review Petition being
                                                                              B
No. 337 of201 l before the High Court which was dismissed vide order
dated 16.08.2011.
      f) Aggrieved by the judgments and order dated 25.05.2010 and
16.08.2011, the appellant-Company has preferred these appeals byway
of special leave before this Court.
                                                                              c
      3. We have heard learned counsel for the parties and perused the
records.
      4. Learned senior counsel for the appellant-Company contended
before this Court that the appellant-Company purchased the entire goods
from Videocon International Ltd., Kochi Branch, after paying tax under
                                                                              D
the KGST Act. The appellant-Company is only the second seller of the
goods and the Assessing Authority ought to have noted thatthe appellant-
Company is eligible for rebate of tax under Rule 32(13B) of the Kerala
General Sales Tax Rules, 1963 (in short 'the Rules'). There is no material
on record for the respondent-State to contend that the appellant-Company
has any brand name rights to treat them as the seller of the goods under      E
the brand name "Sansui" in India. In other words, the short contention
of learned senior counsel for the appellant-Company is that Videocon
International Ltd. itself, which brought the manufactured goods to Kerala,
was the brand name holder and their sale was the first sale as well as
the sale falling under Section 5(2) and so much so the second sale
                                                                              F
exemption was rightly claimed by the appellant-Company.
       5. Per contra, learned senior counsel for the respondent-State
submitted that the appellant-Company could not produce any valid
evidence to substantiate the contention that M/s Videocon International
Ltd. is the brand name holder during the relevant year. The assessing
                                                                              G
authority has rightly established by giving legitimate reasoning that the
appellant-Company is the brand name holder of"Sansui" goods. Also
from the facts and materials on record and from the observations of the
assessing authority, it could be easily gauged that during the relevant
year, the appellant-Company has marketed the products under the brand
name "Sansui".                                                                H
870             SUPREME COURT REPORTS                            [2016] 5 S.C.R.



A           6. The appellant-Company is a registered dealer under the KGST
      Act in Kerala, engaged in marketing products like television, washing
      machine etc. manufactured under the brand name "Sansui". The entire
      products are purchased by the appellant-Company from Videocon
      International Ltd. In fact, Videocon International Ltd., the holding
      company, brings the goods to Kerala on stock transfer and the entire
B
      goods were sold to its subsidiary, the appellant-Company, for marketing
      in Kerala. Even though Videocon International Ltd. returned the entire
      sales as first sales on which they have collected tax from the subsidiary
      company, the appellant-Company was assessed for sales tax by the
      Assessing Officer while scrutinizing the second sale exemption as
c     claimed by the appellant-Company and found that the goods in respect
      of which second sale exemption was claimed by the appellant-Company
      were goods sold under brand name "Sansui" and so much so, tax under
      Section 5(2) is payable by the appellant-Company. The appellant-
      Company opposed the same by stating that the brand name "Sansui" is
      owned by Sansui Electric Ltd., Japan and is not at all related to the
D
      appellant-Company. During the course of proceedings, the Assessing
      Officer found that the correspondence sent to the Department was in
      the letter head with the trademark, logo and brand name of "Sansui".
      Since the products were sold under the brand name "Sansui'', assessment
      was made under Section 5(2) of the KGST Act after disallowing second
E     sale exemption as claimed by the appellant-Company.
            7. For deciding the controversy in issue, it would be appropriate to
      reproduce Section 5(2) of the KGST Act (as it stood at the relevant
      time) which reads as under:-
             Levy of tax on sale of goods.-
F
            "Notwithstanding anything contained in this Act, in respect of
            manufactured goods other than tea, which are sold under a trade
            mark or brand name, the sale by the brand name holder or the
            trade mark holder within the State shall be the first sale for the
            purpose of the Act."
G
            However, what is opposed by the appellant-Company is that it is
      not the "holder" of the brand name in respect of the "Sansui" products
      sold by it.
             8. Whether the appellant-Company is the holder of the brand name
      in respect of the "Sansui" products sold by it or not, it would be appropriate
H
KAIL LTD. (FORMERLY KITCHEN APPLIANCES INDIA LTD.)                            871
        v. STATE OF KERALA [R.K. AGRAWAL, J.]

to quote certain paragraphs of the revision petition decided by the High      A
Court which are as under:-
      "Government Pleader produced before us the files, which show
      the respondent's correspondence even with the Department with
      letter head printed in the name of Sansui with their logo and
      trademark. He has further produced cuttings from Financial               B
      Express published on 25.1.2000 wherein, the newspaper has
      reported that Kitchen Appliances Ltd., a wholly owned subsidiary
      ofVideocon International Ltd. has acquired manufacturing facility
      from Philips India Ltd., Calcutta. During the previous postings,
      we requested the company to produce annual report,
      memorandum of articles etc. only to verify whether the case of           C
      the State that respondent is a subsidiary ofVideocon International
      Ltd. is correct or not. However, no document is produced to
      demolish the State's claim that respondent is a subsidiary of
      Videocon International Ltd. Going by the evidence on record, we
      have to only hold that the respondent is only a subsidiary of            D
      Videocon International Ltd., which marketed the entire products
      through the respondent in Kerala. Further, from the terms of the
      agreement between the respondent's holding company and Sansui
      Electric Ltd., Japan, extracted in Tribunal's order, we notice that
      Videocon International Ltd. and their subsidiary companies are
      allowed to use the trademark and brand name of Sansui in India.          E
      So much so, Videocon International Ltd., which made the first
      sales to the appellant, is also the holderofthe brand name "Sansui"
      in India."
                                               (emphasis supplied by us)
      9. As is clear from the language itself that in order to attract sub-    F
Section (2) of Section 5, the following conditions are to be satisfied
      (i) Sale of manufactured goods other than tea;
      (ii) Sale of the said goods is under a trade mark or brand name;
           and
                                                                               G
      (iii) The sale is by the brand name holder or the trade mark holder
            within the State.
      If all the aforesaid conditions are satisfied, the sale by the brand
name holderorthe trade mark holder shall be the first sale for the purposes
of the KGST Act.
                                                                               H
872             SUPREME COURT REPORTS                            [2016] 5 S.C.R.


A            10. Applying the aforementioned conditions to the facts of the
      present case, it is an admitted fact that the goods sold by the appellant-
      Company are manufactured goods other than tea. The first condition is
      satisfied. The next condition to be satisfied is that the sale of goods is
      under a trade mark or brand name. It is an undisputed fact that the
      manufactured goods sold by the appellant-Company were home .ippliances
B
      under the brand name "Sansui". Thus the second condition is also
      satisfied. Now the last condition to be satisfied in order to attract section
      5(2) of the KGST Act is that the sale is by the brand name holder or
      trade mark holder within the State and whether the appellant-Company
      is a holder of the brand name "SANSUI''.
c            11. On 25.01.2000, a newspaper report was published in the
      Financial Express stating that Kitchen Appliances Ltd. now KAIL is a
      wholly owned subsidiary ofVideocon International Ltd. and has acquired
      manufacturing facility from Phillips India Ltd., Calcutta. The position
      got more clear from the affidavit filed in the High Court by Shri Venugopal
D     Dhoot, a family member of the Dhoot family, who holds a controlling
      interest in the appellant-Company as well as in M/s Videocon International
      Ltd., wherein he honestly admitted that Dhoot family, directly or indirectly,
      is having shareholding control in the appellant-Company and Dhoot
      brothers are also the promoters of Videocon International Ltd. The
      relevant paragraphs of the said affidavit are as under:-
E            "!, Venugopal S/o. Late Shri Nandlal Dhoot, Age 60 years, Occ.
             Industrialist, Rio. 221, Fort House, 2nd Floor, Dr. D.N. Road, Fort,
             Mumbai, do hereby state on solemn affirmation as follows:
             I. That I am filing this affidavit as per directions of this Hon'ble
             Court as per order dated 24/06/2011 . I have been director in the
F            respondent company since 30/1211998 till this date ...
             2. This Hon 'hie Court has directed any of the director member
             ofDhoot family to file an affidavit explaining relationship between
             Videocon International Ltd. and Kitchen Appliances (India) Ltd.
             and about control of Dhoot family over these two companies.
G            Accordingly, I am clarifying the position. I say and submit that
             Kitchen Appliances (India) Ltd. now name changed to KAIL Ltd.,
             is a public limited company and Dhoot family. directly or
             indirectly, through various group companies are having
             shareholding control in respondent company as per the facts
             and various filings with the Regulatory Authorities. However,
H
   KAIL LTD. (FORMERLY KITCHEN APPLIANCES INDIA LTD.)                     873
.:         v. STATE OF KERALA [R.K. AGRAWAL, J.]

     the powers of the management are vested with the Board               A
     of Directors "Director Board") of the company and I am
     one of the directors of the said respondent company .....
     3.    I respectfully say and submit that at that time, as per the
     facts and various filings, Videocon International Ltd. was
     having 15.31 % shareholding in the respondent company                B
     and various other companies of Videocon Group were
     holding remaining equity share capital of the respondent
     company. We, Dhoot Brothers are promoters of respondent
     company. It is closely held company.
     5. I further say that Dhoot Brothers are also promoters of            c
     Videocon International Ltd. and based on the facts and the
     filings made by the company, from time to time, with the Stock
     Exchanges, the promoters together with various Videocon Group
     Companies were holding 35.11 % of equity shares in Videocon
     International Ltd. as on 31/3/0000. Copy of shareholding pattern
     ofVideocon International Ltd as on 31 /3/2000 is produced herewith    D
     and marked as Annexure R-1 (G).
     6. I respectfully further say and submit that at no point of time
     the respondent company was a subsidiary of Videocon
     International Limited. The same is evident from various filings
     made by Videocon International Limited and the respondent             E
     company. Videocon International Limited and, KAIL Limited
     were/are part of Videocon Group.
     Affiliated Group
     "The principal operating companies in the Wider Videocon Group
     outside the Videocon Group, including: Videocon Appliances            F
     Limited, Videocon Communication Limited, Applicomp India
     Limited, Kitchen Appliances India Limited, Millennium Appliances
     (India) Limited and their consolidated subsidiaries."
     In this context, other related/relevant definitions are:-
     Dhoot Family
     Mr. V.N. Dhoot, Mr. P.N. Dhoot, Mr. R.N. Dhoot and their blood        G
     and marital relations and companies or other entities outside the
     Wider Videocon Group owned and/or controlled directly or
     indirectly by all or any such persons.
     Wider Videocon Group
     The affiliated Group and Videocon Group
                                                                           H
874            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A            Videocon Group
             Videocon Industries Limited, and where the context permits, its
             subsidiaries .... "
            12. Similarly, paragraph 6 of the same affidavit shows that
      Videocon International Ltd and KAIL Ltd are part ofVideocon group. It
      also shows that during 1999-2000, the appellant-Company had
B
      manufactured 2057 colour television sets and 961 black and white
      television sets in SANSU! brand at Calcutta factory. Furthermore, at
      page Nos. 109-110 of the website publication produced by learned senior
      counsel for the appellant-Company in the High Court shows that as on
      30.06.2006, I 00% shares of Kitchen Appliances India Ltd. were held by
c     Dhoot family. The given evidences are sufficient enough to show that
      the appellant-Company is a subsidiary and/or a group company ofM/s
      Videocon International Ltd and hence, is also allowed to use the brand
      name SANSUI. Further, evidence on record shows that even the letter
      head used by the appellant-Company for correspondence is printed with
      the name of SAN SUI with their logo and trademark.
D
            13. In Cryptm Confectioneries (P) Lttl. vs. St"te of Kera/(I
      (2015) 13 SCC 492, this Court while dealing with exactly similar incidence
      of tax held as under:-
             "9. In order to attract Section 5(2) of the Act, the following
             conditions are to be satisfied:
E                (i) Sale of manufactured goods other than tea;
                 (ii) Sale of the said goods is under a trade mark/brand name;
                  and
                 (iii) The sale is by the brand name holder or the trade mark
             holder within the State.
 F           If the above three conditions are satisfied, the sale by the brand
             name holder or the trade mark holder shall be the first sale for the
             purpose of the Act.

            10. The aforesaid sub-section commences with a non obstante
            clause i.e. irrespective of Section 5( I) of the Act or any other
G           provision under the Act. The said sub-section speaks of a sale
            made by a brand name holder or 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 possible construction that can
H           be given to sub-section (2) of Section 5 of the Act."
KAIL LTD. (FORMERLY KITCHEN APPLIANCES INDIA LTD.) 875
        v. STATE OF KERALA [R.K. AGRAWAL, J.]

        Further, we are of the view that when a product is marketed under       A
a brand name, the Assessing Authority is entitled to assume that the sale
is by the holder of the brand name or by a person, who is entitled to use
the brand name in India. Apart from this, in this case, the marketing is
actually done by fully owned subsidiary and/or a group company of the
holding company, which was allowed to use the brand name "Sansui".
                                                                                B
         14. Brand name has no relevance when the products are
manufactured and sold in bulk by the holding company to its subsidiary
company for marketing. However, the brand name assumes significance
when goods are marketed with publicity in the market. Moreover, when
the goods are sold under the brand name, necessarily, it has to assume
that the marketing comiJany is the holder of the brand name or has the          c
right to market the products in the brand name because, it is the first
company introducing the products in the market. The objective of Sec
5(2) of KGST Act is to assess the sale of branded goods by the brand
name holder to the market and the inter se sale between the brand name
holders is not intended to be covered by Sec. 5(2) of the KGST Act.             D
         15. However, if the sale between the holding company and the
subsidiary company, both having the right to use the same brand name,
 is at realistic price and the marketing company namely, the appellant-
Company charged only usual margins in the trade, then there is no scope
for ignoring the first sale, particularly, when the first seller was also the
holder of the brand name and was free to market the products in the             E
brand name. However, the evidence on record shows that the margin
charged by the appellant-Company while making the further sale of
product is unusually high. So the inter se sale between the groups of
companies under the control of the same family was only to reduce tax
 liability and was rightly ignored by the assessing officer by levying tax      F
under Section 5(2) of the KGST Act.
         16. In view of the foregoing discussion, we are of the opinion that
the tax invoking Section 5(2) of the KGST Act was rightly levied on the
appellant-Company for the relevant period as it is proved beyond
 reasonable doubt that the appellant-Company is the brand name holder
 of "Sansui". We uphold the decisions rendered by the High Court in             G
 revision petition and review petition and no interference is warranted
 into it.
          17. Above being the position, the appeals are dismissed with no
 order as to cost.
Nidhi Jain                                                 Appeals dismissed.   H