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8. Sri. S. Ananthakrishnan, learned counsel appearing for the petitioner in O.P. No. 1767 of 2003 had also made submissions on similar lines as argued by the counsel appearing for other petitioners. He further submitted that Exts.P1, P2, P4 and P5 proceedings of the respondents are illegal and liable to be quashed.

9. Sri. Raju Joseph, learned Spl. Government Pleader appearing for the respondents made the following submissions. (1) Section 5(2) is an exception to the normal rule under Section 5( 1) in regard to the point of levy and that it is only in respect of the manufactured goods other than tea sold by brand name holders and trade mark holders under a brand name or a trade mark Sub-section (2) is attracted. (2) The manufacturer as such has no relevance. The criteria is sale of goods under a brand name or a trade mark by a brand name holder or a trade mark holder and that too in respect of the manufactured goods only and (3) Section 5(2) is an independent charging provision in respect of the matters covered by the said sub-section. It is also an overriding provision which is evident from the expressions "notwithstanding anything contained in this Act" used in Sub-section (2). Section 5(2A) has two aspects: (i) it deals with a dealer liable to tax under Section 5(1) of the Act read with the Schedule and (ii) such person will be exempted only if he obtains and produces the declaration prescribed under Rule 32(13B) of the K.G.S.T. Rules. Sub-section (2) of Section 5 is an independent charging provision in respect of sale of manufactured goods under a brand name or a trade mark by brand name holders or trade mark holders, who form a separate category. It is only in respect of such transactions effected by such persons the point of levy is shifted from the point of first sale in the State deeming the later sale as the first sale for the purpose of Section 5(1). In other words, the legislature by a fiction deemed the sale of goods under a brand name or a trade mark effected by trade mark holders or brand name holders as the first sale in the State. The commodity is taxed at only one point and there is no difference in the rate of tax provided under the first schedule also. The classification is reasonable and no prejudice is being caused to the petitioners who form a separate class by postponing the levy from the point provided in the First Schedule to the point of sale effected by them. The Spl. Government Pleader also took us to the provisions of Rule 32(13B) of the Rules which provides for the contingency of non-issuance of the declaration contemplated under Sub-section (2A) r/w Rule 32(13B) of the Rules which provides for reduction of the tax paid by the trade mark holder or the brand name holder on their purchase from the tax payable by them on their sales transactions. Such a situation arises in respect of purchases effected after the insertion of Sub-sections (2), (2A) and (2B) only if the brand name holder/ trade mark holder purchasing the goods refuses to issue the certificate contemplated under Section 5(2A) and not otherwise. The Spl. Government Pleader also submitted that there is no warrant for resort to the dictionary meaning of the expression 'holder' to say that Sub-sections (2), (2A) and (2B) only contemplate sale of goods under registered trade mark or registered brand name by a registered brand name holder or registered trade mark holder. The Spl. Government Pleader took us to the definition of 'trade mark' in Trade and Merchandise Marks Act as also the provisions of Section 27 thereof and submitted that even the Trade and Merchandise Marks Act contemplates the user of a trade mark or brand name by unregistered trade mark or brand name holders and that the said statute does not prohibit the user of any unregistered trade mark or brand name except to state that a suit cannot be filed claiming right in respect of a trade mark or a brand name except by a registered trade mark holder/brand name holder. Regarding the reasonableness of the classification and to pick and choose persons and goods for the purpose of taxation the Spl. Government Pleader relied on the decisions of the Supreme Court in East India Tobacco Company v. The State of Andhra Pradesh and Anr. ((1962) 13 STC 529), Murthy Match Works and Ors. v. The Asst. Collector of Central Excise and Anr. ((1974) 4 SCC 428), State of Assam and Ors. v. Sri. Naresh Chandra Ghose ((2001) 121 STC 294) and the decision of the Supreme Court in State Bank v. N.S. Money (AIR 1976 SC 1111). The Spl. Government Pleader also relied on the decision of the Bombay High Court in Federation of Assns. v. State of Maharashtra ((1995) 97 STC 145) and submitted that the said decision has upheld a similar provision contained in the Bombay Sales Tax Act.

31. Now we will deal with the contention of Sri. Arshad Hidayathullah, learned senior counsel for the petitioner in O.P. No. 1144 of 2002 that the word 'holder' used in Sub-sections (2), (2A) and (2B) of Section 5 must be understood as registered trade mark holders or registered brand name holders as otherwise the legislation will be hit by Article 14 of the Constitution. The counsel has relied on the dictionary meaning of the word 'holder' used in Sections 5(2), 5(2A) and 5(B) of the Act and submitted that going by the meaning of the word 'holder' the person who holds the trade mark or brand name must have ownership over the trade mark or brand name and that such ownership over a trade mark or a brand name can be obtained only if the trade mark or brand name is registered under the Trade and Merchandise Marks Act. The further submission of the senior counsel is that when the Legislature has used the expression brand name holder or trade mark holder it must be understood as referring to a brand name or a trade mark registered under the Act mentioned above. It is also his submission that unless the expression 'trade mark holder or 'brand name holder' used in Sub-sections (2), (2A) and (2B) of Section 5 are understood in such a manner the said provisions cannot be sustained. It is to buttress the said argument the senior counsel relied on the decisions of the Supreme Court in regard to the interpretation of statute. Of course the meaning of the word 'holder' in Collins Cobuild English Dictionary for Advanced Learners Major New Edn. (3rd Edn. 2001) is "some one who owns or has something". The word 'holder' in Webster's Third New International Dictionary means, "one that holds something" as a (1) Possessor, Owner - often used in combination". In this context it must be noted that when a person uses a particular brand name or trade name for his product, ordinarily he has got the ownership over the said brand name or trade name. It is only when it comes to the question of infringement of the trade mark or brand name used by such person a situation may arise as to whether such person can seek relief against the person who is responsible for such infringement. It is in that context the relevance of the Trade and Merchandise Marks Act arises. As the Spl. Government Pleader has pointed out any person can do business by using a trade mark or a brand name for which there is no legal impediment. This is also recognised by the Trade and Merchandise Marks Act, It is in that context the relevance of the definition of trade mark and the provisions of Section 27 of the Trade and Merchandise Marks Act occurs. There is no inhibition under the said Act for the user of a trade mark or brand name by unregistered trade mark holders or brand name holders. Section 27 of the said Act only states that no person shall be entitled to file or institute any proceedings to prevent or to recover damages for the infringement of an unregistered trade mark. An unregistered trade mark holder is also the owner of the trade mark which was but the registration grants exclusive right to the registered proprietor of the trade mark to use such trade mark. However, this section does not preclude an action against any person for passing off goods as the goods of another person or the remedies in respect thereof. If under law there is no inhibition in a person using a trade mark or brand name for his products even without registration of the trade mark or brand name under the Trade and Merchandise Marks Act when the Legislature uses the expression 'trade mark holder' or 'brand name holder' it is not possible to say that the legislative intention is that the expression 'trade mark holder' or 'brand name holder' only means registered trade mark holder or registered brand name holder. If such an interpretation is placed that will amount to rewriting the section by adding words which were not in the section. It is settled that interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of me statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency (Sales Tax Commissioner v. Modi Sugar Mills (AIR 1961 SC 1047). It is relevant in this context to note that wherever Legislature wanted to refer to registered trade mark/brand name holders they have said so as is evident from entry 105 of the First Schedule to the Act - Pappad, appalam and similar other items by whatever name called, sold under brand name registered under the Trade and Merchandise Marks Act, 1958.

32. The senior counsel relied on the decision of the Supreme Court in Krishna Chandra v. Union of India (AIR 1975 SC 1389) particularly paragraph 9 thereof where the Supreme Court observed that what has been described as the sound system of construction, excluding all but the language of the text and the dictionary as the key, hardly holds the field especially if the enactment has a fiscal or other mission, its surrounding circumstances speak and its history unfolds the mischief to be remedied and the Court, in its comity with the Legislature, strives reasonably to give meaningful life and avoid cadaveric consequence. The senior counsel also relied on the decision of the Supreme Court in Johri Mal v. Director, C of H, Punjab (AIR 1967 SC 1568) particularly paragraph 6 thereof where it was held that if two constructions of a statute are possible, one which would make it intra vires and the other ultra vires, the Court must lean to that construction which would make the operation of the section intra vires. The reason stated is that no intention can be imputed to the Legislature that it would exceed its own jurisdiction. A statute has to be so read so as to make it valid; it has to be construed ut res magis valeat quam pareat. These decisions regarding the interpretation of statutes have been relied on by the senior counsel only to buttress his argument that unless the word 'holder' used in Sub-sections (2), (2A) and (2B) is understood as registered trade mark/brand name holders it will lead to discrimination in that dealers who are not similarly situated are being treated alike which will infringe the provisions of Article 14 of the Constitution. In other words, according to the senior counsel unregistered trade mark/brand name holders and registered trade mark/brand name holders are two different categories and if they are treated alike for the purposes of levy of tax that will amount to discrimination violative of Article 14 of the Constitution.