ORDER : Devan Ramachandran, J. The State of Kerala assails the judgment of the Kerala Value Added Tax Appellate Tribunal, Ernakulam (hereinafter referred to as ‘the Tribunal’ for short), in T.A (VAT)No.175/2020, on various grounds. 2. The original assessee was Sri.K.C.Abraham – the original respondent, who is now no more; and his legal heirs have been arrayed as the other respondents in this matter. 3. Sri.K.C.Abraham (who will hereinafter be referred to as ‘the original assessee’) is stated to have been the ‘legal brand owner’ of ‘Musli Power Xtra’; and he entered into an agreement with an entity by name ‘Lakshita Medi Pharma’ (LMP for short) agreeing to ‘transfer rights to Lakshita for Manufacturing, Marketing sale and own the following products, Musli Power Xtra Oil An Ayurvedic Product, Musli Power spray An Allopathic product and Musli Power Jelly/Condoms An Ayurvedic/Food Product’ (sic). He admitted that, as per the Agreement, LMP was to pay him an amount of Rs.1 Crore towards the afore arrangement, and that he received Rs.50 Lakhs from them; which he then accounted in his Books of Accounts as being ‘Other Income-Patent’. He, however, maintained that, since there was no patent applied for the products in question and since no such could have been because, the same had not been yet manufactured, much less sold, the attempt of the appellant herein to tax him under Entry 68 of the 3 rd Schedule of the Kerala Value Added Tax Act (hereinafter referred to as ‘the Act’ for short), was improper and impermissible. 4. We see that the matter was taken up in Appeal before the Deputy Commissioner of (Appeals), which culminated in Annexure 2 order; and since it was against the ‘original assessee’, he filed the aforementioned Appeal before the learned Tribunal, which has found the issue in his favour; thus constraining the State of Kerala to approach us through this Revision. 5. Sri.Raja Kannan – learned counsel for the respondents, argued that, as has been rightly found by the learned Tribunal, merely because the ‘original assessee’ had adopted a particular accounting standard in his Books of Accounts, classifying the amount as being ‘Other Income-Patent’, it could never be subjected to tax because there is no incident of taxation, the product having not even been created; and further that, Entry 68 of the 3 rd Schedule never would be attracted because it does not involve any patent. He reiterated that the brand names aforementioned are not covered by any patent, but was coined by the ‘original assessee’, which he allowed LMP to use, while they are to manufacture the articles in future. He made an adscititious argument that, going by the Agreement – which has been extracted in the impugned order of the learned Tribunal – the sale of the names are not permanent, but only for a five year period; and hence, that there cannot be any incident of taxation under the ‘Act’ for that reason also. He prayed that, hence, the findings of the learned Tribunal be left uninterdicted and this Revision be dismissed. 6. Smt.Thushara James – learned Senior Government Pleader, however, refuted the afore contentions saying that, it is the ‘original assessee’ who had, in his Profit and Loss Account filed by him, classified the disputed income as having received from a party outside the State under the head ‘Miscellaneous Income-Patent’. She added that this has been so mentioned in the audit also. She then argued that, it is not merely the classification adopted by the respondent which has been disputed by the department, but the very factum of him having received the disputed income against brand names – for manufacture of certain articles – which is based on patents he was holding, that brings him within the purview of Entry 68 of 3 rd Schedule of the KVAT. She pointed out that, in the order of the Deputy Commissioner (Appeals), the patent certificate bearing No.241602 had been marked as Annexure I; but that this has not even been considered by the learned Tribunal, while issuing the impugned order. She argued that the overwhelming totality of the factual circumstances would clearly establish a situation where the rights of the ‘original assessee’ under the patent had been sold to LMP; and thus that it could have been classified only within the provisions of Entry 68 of the 3 rd Schedule in the ‘Act’. She prayed that this Revision be, therefore, allowed and the impugned order of the learned Tribunal be set aside. 7. We have considered the afore rival submissions on the touchstone of the various materials available on record. 8. She prayed that this Revision be, therefore, allowed and the impugned order of the learned Tribunal be set aside. 7. We have considered the afore rival submissions on the touchstone of the various materials available on record. 8. It is without doubt and beyond contest, that the ‘original assessee’ had entered into an Agreement with the LMP to transfer rights to them for manufacturing, marketing, sale and to own certain products, which he names as ‘Musli Power Xtra Oil’ ‘Musli Power Spray’ and ‘Musli Power Jelly/Condoms’ (sic). We are not clear how these brand names were used by the ‘original assessee’, but in the Agreement – relevant portion of which has been extracted in the impugned order – he defines himself to be the ‘legal brand owner of ‘Musli Power Xtra’ (sic). 9. Further more, the respondent – as is also admitted – declared the disputed income as being ‘received from the other party outside’ under the head ‘Other Income – Patent’. The learned Tribunal, however, found that there is no question of a patent having been applied for or obtained, because the products itself had not been produced; thus finding the orders of the Assessing Officer; as well as that of the First Appellate Authority, assessing miscellaneous income to the tune of Rs.50 Lakhs, to be incorrect. 10. We are afraid that we cannot find favour with the findings of the learned Tribunal without better scrutiny, for various reasons. 11. For the first, the Agreement between the ‘original assessee’ and LMP refers to the former being a ‘legal brand owner’, but without reference to any patent, though he says that he has one such over the brand name ‘Musli Power Xtra’. In fact, this has been noticed by the Deputy Commissioner (Appeals) in his order dated 30.01.2019; and a copy of the patent certificate appears to have been marked therein as Annexure 1. For some reason, the learned Tribunal is not seen to have adverted to, or examined the said document; and this is pertinent because Sri.Raja Kannan says that his clients are willing to produce the Patent Certificate before this Court. 12. Moving on, going by the Agreement, the articles to be produced are to be sold, marketed and owned by LMP, again under the name ‘Musli’, though there are certain additional qualifications shown to it, even in the names. 12. Moving on, going by the Agreement, the articles to be produced are to be sold, marketed and owned by LMP, again under the name ‘Musli’, though there are certain additional qualifications shown to it, even in the names. We obtain no clarity if the names are ‘brand names’, or covered by ‘Trade Marks’; and if the formula used therein is within the ambit of the patent admitted by the ‘original assessee’ to have been obtained by him in the name ‘Musli Power Xtra’. This is relevant because, the Agreement mandates that the ‘original assessee’ will provide the raw material and the ‘formula’ for the articles to be produced under it; and then it further goes to say that the latter can do this in technical collaboration with the former for only five years. 13. Of course, Sri.Raja Kannan interprets the Agreement, particularly Clause F thereof, to say that the sale is only for five years; but when we read it in its full – for which, it is extracted below – the impressions can be different because of the rather poor manner of drafting: F. Lakshita on the products Musli Power Oil, Musli Power Xtra and Musli Power Xtra Jelly/Condoms can use under technical collaboration with Kunnath Pharmaceuticals only for first 5 years. 14. No doubt, the learned Tribunal has gone on from the angle of a ‘patent’ and the requirements as are necessary to qualify a product as a ‘patent product’. On first principles, we cannot have any difference of opinion; but on the facts involved, certainly it requires a better consideration, particularly since, as said above, the patent marked by the Deputy Commissioner in his order does not appear even to have been considered, much less examined by the learned Tribunal. 15. Since the factual arena now presents itself to be in a state of nebulous uncertainty, we have little doubt that the entire matter will have to be reconsidered by the learned Tribunal in its proper perspective, after affording necessary opportunities to both sides. We do not propose to say anything further on any of the issues, lest it prejudice the minds of the learned Tribunal, while it completes the exercise. We do not propose to say anything further on any of the issues, lest it prejudice the minds of the learned Tribunal, while it completes the exercise. For the afore reasons, we allow this Revision and set aside the impugned order of the learned Tribunal, and remit T.A.(VAT) No.175/2020 to it; with a consequential direction to it to reconsider the same, adverting to our observations, as also every other germane and relevant inputs, facts and documents – including the Patent Certificate, if it is to be produced before it by the respondents; thus culminating in an appropriate order thereon, as expeditiously as is possible. We, however, deem it necessary to clarify that the observations we have made in the judgment are only to guide us in the decision we have taken; and that the learned Tribunal will be at liberty to consider every issue dispassionately within the ambit of law.