Decided on February 20,2009

Mallaiah And Sons Edible Oils Private Limited Appellant


G. Venkateswarlu, Member (D) - (1.) THIS is the first appeal filed against the revision orders of the Additional Commissioner of Commercial Taxes (Legal) A.P. at Hyderabad (for short, 'Addl. CCT') in CCT's Reference No:L.III(4)/1042/2006 dated 05 -09 -2008 modifying the first appeal orders of the Appellate Deputy Commissioner of Commercial Taxes, Vijayawada (for short, 'ADC') vide his Appeal No. VJA -I/100/2004 -2005 dated 10 -05 -2005 arising out the final assessment orders of the Commercial Tax Officer, Sivalayam Street Circle, Vijayawada (for short 'CTO') in G.I. No. 25290/2003 -2004 dated under Section 5AA of the A.P. General Sales Tax Act 1957 (for short, 'Act') for the assessment year 2003 -2004. FACTS: - The appellant is a trader of various vegetable oils like groundnut oil, sunflower oil, RBD palmoline oil, coconut oil, etc. It purchased them from various sources without any specificity and packed them in plastic sachets containing a mark called "GM" and claimed exemption on such sales of edible oils sold in the sachets contained the said mark under Section 5 of the Act. It claimed exemption on such sales towards the second and subsequent sales of the vegetable oils taxable at the point of first sale in the State of A.P. under Section 5 of the Act. However, the same is rejected by the CTO and brought them to tax under Section 5AA of the Act relying on the orders of this Tribunal in the case of Aditya Music, Hyderabad Vs. State of A.P. : 37 APSTJ 211 for the proposition that the registration status of the trade mark is not the necessary requirement for attracting the Section 5AA of the said Act. Aggrieved of these orders, the first appeal is preferred before ADC who had allowed the same in favour of the appellant holding that every identification mark does not become a trade mark and the identification mark used by the appellant cannot be treated as trade mark, basing on the memo issued by the Government of A.P. in Memo No. 23159/CT -II(I)/2004 -2 dated 23 -08 -2004. Finding fault with this finding of the ADC, the Addl. CCT had issued a pre -revision show -cause notice proposing to treat that the appellant is a holder of identification mark "GM". After considering the objections filed by the appellant, The Addl. CCT passed the revision orders setting aside the first appeal orders of the ADC concluding mat the mark used by the appellant "GM" is a trade mark for the purpose of Section 5AA of the Act duly relying on the Memo issued by the Government of AP in Memo No: -6884 -CT -II(1) dated 23 -6 -2005. Aggrieved of these orders the present first appeal is before us. SUBMISSIONS: -
(2.) THE ADC contended that as per the Government Memo dated 23 -08 -2004 the identification marks and trade marks are different; that not all the identification marks are trade marks; and that the mark "GM" of the appellant is only an identification mark. The Addl. CCT contended in his pre -revision show cause notice that the appellant annual turnover is more than Rs. 15,00,000 per annum and hence, latter is not a small dealer; that because he is not a small dealer, the mark used by the appellant "GM" is an identification mark and the appellant is a holder of the said identification mark; and that whether or not the said mark is registered under the said merchandise Act, the provisions of Section 5AA of the Act get attracted. However, while passing the impugned orders he had concluded that the said mark is a trade mark. The contention of the appellant that the same issue is pending before this Tribunal was not accepted by him inasmuch as in assessee's own case in T.A. No. 1268 of 2004 dated 23 -12 -2004 this Tribunal held against the appellant.
(3.) THE learned SR, however, vehemently argued that the revision orders of the Addl. CCT cannot be interfered with in the light of this Tribunal's earlier orders in the appellant's own case and in the light of the various Memos issued by the Government of A.P. from time to time, explaining the differences between identification marks and trade marks. He relied on the decision reported in the case of State of U.P. Vs. Ram Nath in Criminal Appeal No. 41 of 1969 dated 24 -11 -1971.;

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