ORDER : K. VINOD CHANDRAN, J. 1. The revisions arise respectively from the order of penalty and an order of assessment for the year 2005-2006. The question raised is common and the only additional question would be as to whether penalty would lie in view of the doubt expressed as to which Entry the product would be covered by. The questions of law are re-framed as follows: “In the facts and circumstances of the case whether the Tribunal was correct in having held that the subject goods manufactured and sold by the appellant were correctly assessed at the higher rate under S.R.O 82 of 2006 of the Kerala Value Added Tax Act, 2003 (for brevity KVAT Act) ? and “Whether, in the context of a genuine doubt as to the product description as per the Entries in the various Schedules, the penalty imposed though modified was rightly imposed at all, by the Tribunal?” 2. The issue arises in so far as the products of the assessee referred to in the assessment order at Annexure A produced in OT[Rev.] No.193 of 2015. They are toasted bread, crunch toast, sweet toast and milk toast. Whether they are assessable under Entry 6 of the First Schedule or Entry 7 of the Third Schedule or Entry 11 of SRO 82/06, all appended to the KVAT Act; respectively taxable @ 0%, 4 % and 12.5%, at the relevant time. The Assessing Officer held that it falls under Entry 11 of SRO 82/2006 and not Entry 6 of First Schedule. The Tribunal found that since the products are aligned against the specific HSN Code 1905.40.40, they do not fall under Entry 6 of the First Schedule: “Bread of all types”. The Tribunal in fact refused to look into whether the product was registered or not under the Trade Marks Act, 1999 [for brevity, ‘the Trade Marks Act’]. The learned Counsel for the assessee submits that if at all a different view is taken and the product is found to be included under Entry 7 of the Third Schedule then there should be a remand to the Tribunal. However, we are of the opinion that since the facts are not in dispute, we ourselves can look into that question, alternatively arising in the revision; which essentially is on classification. 3. We have to first note the various Entries under the KVAT Act, being: First Schedule: 6. However, we are of the opinion that since the facts are not in dispute, we ourselves can look into that question, alternatively arising in the revision; which essentially is on classification. 3. We have to first note the various Entries under the KVAT Act, being: First Schedule: 6. Bread of all kinds -1905.90.90 Third Schedule: 7. Bakery products, sweets, confectionery and other food products other than those sold under brand name registered under the Trade Marks Act, 1999. ***** S.R.O. 82 of 2006 11. Bakery products including biscuits of all varieties, cakes, pastries, pizza bread, sold under brand name, registered under the Trade Marks Act, 1999. 1 Crisp bread 1905.10.00 2 Ginger bread 1905.20.00 3 Sweet biscuits 1905.31.00 4 Wafers coated with chocolate or containing chocolate 1905.32.11 5 Other wafers 1905.32.19 6 Rusks, toasted bread and similar toasted products 1905.40.00 7 Pastries and cakes 1905.90.00 8 Biscuits sold under brand name, registered under the trade[branded] NA 9 Pizza bread NA 4. The assessee has admittedly obtained registration under the Trade Marks Act for the commodity “All types of bread” as is evident from the Certificate dated 11.10.1985 produced across the Bar, which is as follows: Hkkjr ljdkj GOVERNMENT OF INDIA O;kikj fpag jftLVªh TRADE MARKS REGISTRY O;kikj vkSj i.; fpUg vf/kfu;e] 1958 TRADE AND MERCHANDISE MARKS ACT, 1958 O;kikj fpag ds jftLVªhdj.k dk izek.ki=] /kkjk 23¼2½] fu;e 65¼1½ Certificate of Registration of Trade Mark, Section 23(2), Rule 65(1) O;kikj fpag la[;k@ Trade Mark No …….444239B fnukad Date……….11 TH OCTOBER, 1985 ;g izekf.kr fd;k tkrk gS ftl O;kikj fpag dh lekd`fr blds lkFk mikc) gS] og ------------------------------------------ ------- --------------------- ----------------------------- ----------------- ------------------------------------------- ----------------------------------------------------------------------- ------------------------------------ -------- ------------------- ----------------------------------------------------------------- ---------------------------------------------------------------- ------------------------------------------------------------- ds ckjs esa fnukad-----------------------------------------dh------------------------------------uke esa jftLVj ds Hkkx d ¼[k½ esa---------------------- oxZ esa---------------------------------------------la[;k ls jftLVªhd`r gks ldk gSA Certificate that the Trade Mark, of which a representation in annexed hereto, has been registered in Part X (B) of the register in the name(s) of MODERN FOOD INDUSTRIES (INDIA) LIMITED, 25-B, LOCAL SHOPPING CENTRE, PASCHIMI MARG, VASANT VIHAR, NEW DELHI - 110 057, MANUFACTURES AND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In class…… ……30…… …….under No. 444239B …… as of the Dated…..11 TH OCTOBER…1985 in respect of ALL TYPE BREAD. MODERN esjs funsZ'k ij vkt 19------------------------ds -------------------------ekl ds -----------------os fnu dh bl ij eqnzk yxk;h xbZ Sealed at my direction, this FIFTEEN TH …………………day of JUNE………….1995 O;kikj fpag jftLVªh] cEcbZ Trade Marks Registry, Bombay ;kikj fpag jftLVªkj Registrar of Trade Mark 5. The learned Counsel appearing for the revision petitioner would contend that the products of the assessee have to be classified under “Bread of all kinds” of the First Schedule and has to be exempted from taxation. It is the alternate contention that the products toasted breads would come within the categorization of: “Rusks, toasted bread and similar toasted products” as seen under Entry 11 of S.R.O. 82/2006 and since that product is not registered under the Trade Marks Act it cannot be covered under that Entry. The said contention is raised specifically with reference to Section 7 of the Trade Marks Act and the classification of goods and services under the Fourth Schedule of that Act and the “International Classification Of Goods & Services For the Purposes of Registration of Marks (NICE Classification)” adopted by India, as is seen from the text book Venkiteswaran on Trade Marks and Passing Off, Sixth Edition by K.C. Kailasam, Volume-II. It is argued that the “toasted bread products” of the assessee if found to be not included in “Bread of all kinds” [Entry 6 of First Schedule]; ought to be excluded from Entry 11 of SRO 82/2006 since the said product is not registered under the Trade Marks Act. Then the question arises as to whether they come under Entry 6 of Third Schedule which takes in all bakery products other than that sold under registered trade mark. 6. Then the question arises as to whether they come under Entry 6 of Third Schedule which takes in all bakery products other than that sold under registered trade mark. 6. The learned Counsel would also rely on Vishnudas Trading v. The Vazir Sultan Tobacco Co. Ltd. [JT 1996 (6) 366], which was relied on in a recent decision of the Hon’ble Supreme Court in Civil Appeal Nos.2943 to 2944 of 2018, M/s.Nandhini Deluxe v. M/s.Karnataka Co-operative Milk Producers Federation Ltd. It is the argument of the assessee that the comprehensive list of goods classified under Trade Mark-Class 30, “bread” and “rusk” are separately shown and hence are treated differently. It is also argued that in a like circumstance a Division Bench of this Court had found that despite there being a brand name shown in the package of a produce, if the said product is not registered under the Act of 1999, then there can be no sale found of a product under brand name registered under the Trade Marks Act. 7. The learned Senior Government Pleader, on the other hand, produces the packets of the various products and argues that the brand name is clearly shown therein. It is also contended that, if the assessee has a contention that the product is included under the broader classification of breads of all kinds, then necessarily the product is registered under the Trade Marks Act and tax has to be levied under Entry 11 of SRO 82/2006. The learned Counsel for the petitioner, referring to the packets produced, points out that the registered brand name is ‘MODERN’ in English and the packet shows it in Malayalam- vernacular. It is also pointed out that there is no TM shown as against the brand name, specifically understanding the product to be not registered under the Trade Marks Act. 8. Further, on the classification as per the Customs Tariff Act, 1975 [for brevity, the Customs Tariff Act], it is pointed out that rusks, toasted bread and similar toasted products is preceded by a “-”. Then as per the General Explanatory Notes under the General Rules for the Interpretation of the First Schedule, the article or groups of articles shown therein shall be a sub-classification of those covered by the general heading. Then as per the General Explanatory Notes under the General Rules for the Interpretation of the First Schedule, the article or groups of articles shown therein shall be a sub-classification of those covered by the general heading. Especially when the product as shown in Entry 11 is aligned against the specific HSN Code as evident from the Customs Tariff Act, it is not included in the Entry relatable to breads. Even under the Customs Tariff Act “breads” would fall under the Entry “Other”, which is aligned against the 8 digit HSN No.1905.90.90, which is preceded by “---” (three in number). The learned Counsel would, on the aforesaid submissions, argue that the assessee never intended that the product “toasted breads” be sold under a trade mark or that the products “all types of breads” having a brand name registered under the Trade Marks Act included toasted items. 9. Under the Trade Marks Act, Section 7 deals with classification of goods and services, which the Registrar has to do in accordance with international classification of goods and services for the purposes of registration of trade marks, which according to the learned Counsel for the assessee is the “International Classification Of Goods & Services For the Purposes of Registration of Marks” adopted by India. The Fourth Schedule of the Trade Marks Rules, 2002, deals with the classification of goods and services and specifically refers to the various classes and the description of the products coming under each class. The class under which the petitioner has obtained registration is Class 30 of the Fourth Schedule, which deals with a number of products including bread. We have to decide as to whether its the Fourth Schedule under the Trade Marks Rules or the International Classification that applies in the relevant assessment year, which we will deal with a bit later. We have also seen from the text book we earlier referred to, that there is a comprehensive list of goods classified under the Trade Mark Class 30 as available in the International Classification. 10. Vishnudas Trading [supra] was a case in which the respondent had obtained registration of the brand name ‘Charminar’ under the General Class of manufactured tobacco. We have also seen from the text book we earlier referred to, that there is a comprehensive list of goods classified under the Trade Mark Class 30 as available in the International Classification. 10. Vishnudas Trading [supra] was a case in which the respondent had obtained registration of the brand name ‘Charminar’ under the General Class of manufactured tobacco. The appellant had sought for registration of chewing tobacco in the same brand name, which was declined by the authorities for reason of there being a registration obtained under the General Class of manufactured tobacco by the respondent. The appellant then filed an application before the Trade Mark authorities for confining the registration of the respondent to cigarettes, permitting the registration of the brand name for the product of the appellant, which was also a manufactured tobacco, but not cigarettes. The Hon’ble Supreme Court found so in the above decision: “47. The “class” mentioned in the 4th Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of 4th Schedule of the Rules but within the said class, there are number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles are intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of 'manufactured tobacco' as mentioned in Class 34 of 4th Schedule of the Rules. In our view, the contention of Mr.Vaidyanathan that in view of change in the language of Section 8 of Trade Marks Act as compared to Section 5 of Trade Marks Act 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and 4th Schedule of the Rules.” 11. The appellant’s prayer therein was allowed and the respondent’s registration was directed to be confined to the specific product coming within the same class or genus ie: cigarettes coming within the class or genus of manufactured tobacco. The reliance placed on the aforesaid judgment is to point out that merely because there is a registration obtained under the Schedule of the Trade Marks Act, that does not, necessarily confer the brand name holder, monopoly to all the separate items that could be enumerated in the said class or to the various products that would come within the meaning of an individual product description. The said decision is a binding precedent in so far as the issue arising under the Trade Marks Act. Whether another manufacturer's produce falling under the general description; but is distinguishable on the nature of use and general market understanding can be given a separate registration of trade name or mark is what has been answered in the affirmative. The issue arising in a taxation statute has an altogether different perspective when the taxing statute levies a higher tax on branded items sold under trade mark. There the consumers desire or tendency to pick up that product sold under popular brand name is sought to be taxed by the legislature at a higher rate. The reason also is that the product sold under a popular brand name, which is also registered under the Trade Marks Act, is in more demand and the discerning customer prefers it despite the higher price it commands, for reason of the brand name, which bears a certain assurance of the quality of the product. In the present case, the assessee has obtained registration of the brand name for “all types of bread”; bread alone being the separate class as seen from the comprehensive list of goods classified under Class 30. Whether ordinary bread as understood commercially and rusk, are the separate species coming under the same class or genus is the vexing question. We have to keep in mind the line of distinction, though it may be thin, in addressing the question from the perspective of registration of trade mark for separate products coming under the same class and taxation at the higher rate for reason of the stamp of quality the product bears for reason of the trade mark displayed on the package. 12. 12. Looking at the various entries under the Customs Act, admittedly “rusk, toasted bread and other toasted products” come under a specific heading indicating that the items are sub-classification of the common heading under the Customs Act, being “Bread, pastry, cakes ... and so on and so forth, as shown against the four digit HSN of 1905. The general heading aligned with four digits of HSN 1905, are bakery products, the sub-classification of which are the various items listed there under. “Rusks, toasted bread and similar toasted products” come under the 8 digit HSN Code of 1905.40.00 proceeded by (one)“-”. The Schedules under the KVAT Act, align Entry 6 of the First Schedule with the 8 digit HSN Code of 1905.90.90 and Entry 11(6) of SRO 82/2006 is aligned against the 8 digit Code of 1905.40.00. The “_” has not been adopted in the KVAT Act, and reference to the General Explanatory Notes, is only to understand the product description under the Customs Act. It is trite that the taxability under the Customs Act and the sales tax law could be at different rates and the HSN Code and “-” alignment is only for the purpose of identifying the products under a particular item. An item in the sales tax enactment aligned to a specific HSN Code has to be identified as identified in the Customs Tariff Act itself. As seen from the Customs Act and the Chapter 19, we have to understand “rusk, toasted bread and similar toasted products” as different from breads, though coming under the very same four digit HSN Code. 13. In deciding the issue, we are concerned with three enactments, the KVAT Act, the Customs Tariff Act, and the Trade Marks Act. The description of the goods in one of such enactments does not at all regulate the adjudication of issue with respect to the other enactments, except where there is an item aligned to an HSN Code in the Schedule of the VAT Act, when the description would have to be understood from the description of the very same goods under the Customs Tariff Act. 14. 14. Before we go further we have to notice Kilban Foods India (P) Ltd. v. The Commissioner Commercial Taxes[(2014) 22 KTR 307(Ker)], wherein the issue was whether the pickle sold by the dealer allegedly under the registered trade mark would be exigible to tax at the higher rate of 12.5%. The challenge in the said case was from an order of clarification which found the pickle sold by the assessee to be exigible to tax at the higher rate. A Division Bench of this Court found that the trade mark registration taken by the assessee was not with respect to pickles and hence the pickle sold by the assessee though showing the trade mark in the cover of the package, would not be exigible at the higher rate. In the present case also, the contention of the assessee is that there is no trade mark registration with respect to “rusks, toasted bread etc.”, which is also separately dealt with under SRO No.82/2006 as distinguished from “breads”. 15. The specific claim of the assessee was under Entry 6 which exempts from tax “Bread of all kinds”. We notice that Entry 6 is aligned to HSN code 1905.90.90. Hence to understand the correct description of the goods we have to look at the Customs Tariff as available under Chapter 19, of the Customs Act. The specific heading 1905 is extracted hereunder:- Tariff Item Description of goods Unit Rate of duty Standard Preferential areas 1 2 3 4 5 1905 Bread, pastry, cakes, biscuits and other bakers wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products Kg 1905.10.00 -Crisp bread Kg 30% 30% - - 1905.20.00 -Gingerbread and the like Kg -Sweet biscuits; Waffles and Wafers 45% 45% 45% - 1905.31.00 Sweet biscuits Kg 1905.32 Waffles and Wafers: - --- Communion Wafers: 1905.32.11 ----Coated with chocolate or containing chocolate Kg - 1905.32.19 ----Other Kg 1905.32.90 --- Other Kg 45% - 1905.40.00 -Rusks, toasted bread and similar toasted products Kg 30% - 1905.90. -Other 1905.90.10 --- Pastries and cakes Kg 30% - 1905.90.20 --- Biscuits not elsewhere specified or included Kg 30% - 1905.90.30 ---Extruded or expanded products, savoury or salted Kg 30% - 1905.90.40 --- Papad Kg 30% - 1905.90.90 --- Other Kg 30% - 16. -Other 1905.90.10 --- Pastries and cakes Kg 30% - 1905.90.20 --- Biscuits not elsewhere specified or included Kg 30% - 1905.90.30 ---Extruded or expanded products, savoury or salted Kg 30% - 1905.90.40 --- Papad Kg 30% - 1905.90.90 --- Other Kg 30% - 16. To understand the correct description we have also to look at the “Rules for the Interpretation of Import Tariff” specifically that dealing with a “-”. Under the “General Explanatory Notes”, it is stated that if the description of an article or group of article under a heading, is preceded by a “-”, the said article or group of articles is to be taken as a sub-classification of the article covered by the general heading. When the description of an article or a group of articles is preceded by “--”(two), then it is to be taken as a sub-classification of the immediately preceding article/s preceded by “-”(one). If an article or group of articles is preceded by “---”(three) or “----”(four) then that is to be taken as a sub-classification of the immediately preceding description which has “-”(one) or “--”(two). Under Heading 1905, “Bread” and other related bakery items are shown. “Rusk, toasted bread and similar toasted products” is proceeded by one “-” and is aligned to HSN Code 1905.40.00. Hence the same is a sub-classification of the articles shown under the general heading description of bread and other bakery items. After “Rusk, toasted bread and similar toasted products” as against HSN 1905.90, “Other” is shown which is preceded by again(one) “-” which makes it also a sub classification of the general heading, as distinguished from “rusks...etc.”. Under that “Others”, there are four items and a further “Other” with “---”(three). Hence the “Other” preceded with “---”(three) aligned with HSN code 1905.90.90 is the sub-classification of that “Other” above it, preceded by “-”(one) aligned with HSN Code 1905.90. It is crystal clear that the articles described under 1905.90.90 is a sub classification of the articles aligned with 1905.90, which is a sub-classification of the general heading aligned to HSN Code 1905. That “Other” with “---”(three) and aligned to HSN code 1905.90.90, does not include “Rusk, toasted bread and similar toasted products” aligned to HSN Code 1905.40.00 as per the Customs Tariff Act. That “Other” with “---”(three) and aligned to HSN code 1905.90.90, does not include “Rusk, toasted bread and similar toasted products” aligned to HSN Code 1905.40.00 as per the Customs Tariff Act. In understanding “bread of all kinds” under the First Schedule to the KVAT Act the description as in the Customs Tariff Act has to be adopted since Entry 6 is aligned with HSN Code 1905.90.90. Hence the toasted products sold by the assessee does not fall under Entry 6 of the First Schedule. 17. Now the question is whether the products fall under Entry 7 of Third Schedule or Entry 11 of SRO 82/2006. Here we have also to look at whether the items sold by the assessee is under brand name or not. There is no dispute that the assessee has a brand name registered for “All kinds of breads” which brand name is also printed in the packet in which the goods are sold. Respectfully following Kilban Foods India P.Ltd. (supra); if the specific product has not been included under the Certificate of Registration, issued under the Trade Marks Act, then, the mere fact that the trade name is printed in the package cannot result in the higher tax being levied on the product. The reason being that it is not a product “sold under brand name registered under the Trade Marks Act” as the recital goes in Entry 11 of SRO 82 of 2006. 18. The said adjudication has to be made with reference to the Trade Marks Act, the Rules and the Schedules provided thereunder. The assessee has a contention that the “International Classification of Goods and Services for the Purposes of Registration of Marks (NICE Classification)” has been adopted by India and hence that has to be looked into. In the list provided under Class 30, as available in the text book referred to earlier, we see bread, pastries and confectionery along with various other food items which as has been declared in Vishnudas Trading(supra) is the class or genus. The learned Counsel had taken us through the Alphabetical List of Goods available in Volume II of the authoritative text book, referred to earlier, which gives a more comprehensive description of the species coming within the common genus; wherein bread and rusk are shown differently. The learned Counsel had taken us through the Alphabetical List of Goods available in Volume II of the authoritative text book, referred to earlier, which gives a more comprehensive description of the species coming within the common genus; wherein bread and rusk are shown differently. We have to immediately notice the argument of the learned Senior Government Pleader that the International Classification adopted by India has been statutorily recognised only after the Fourth Schedule - {Classification of Goods and services-Name of the classes} was deleted from the Trade Marks Rules 2002, in the year 2013. Rule 22 was also substituted recognising the NICE Classification; by GSR 21(E) dated 14.10.2013. 19. The State asserts that the subject assessment years are when Fourth Schedule was available in the Trade Marks Rules 2002 wherein Class 30 provides the following description:- “Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pasty and confectionery, ices; honey treacle; yeast baking powder; salt, mustard; vinegar, sauces (condiments), spices; ice.” Bread being the only sub-item provided and the registration being for “All kinds of bread” the toasted products of the assessee is sold under brand name is the compelling argument. 20. Section 7 of the Trade Marks Act deals with classification of goods and service and require the Registrar to classify the goods and services, as far as may be in accordance with international classification of goods. Rule 22 of the Rules deals with classification of goods and services and for the purpose of registration of trade marks goods and services are to be classified in the manner specified in the Fourth Schedule. The assessee obtained registration of trade mark for “all types of breads”. 21. Commercially and as understood in the market, as also in the perspective of the consumer, rusk and bread are not the same. One will not ask for rusk when he needs bread nor vice-versa. Though the Fourth Schedule was available in the Trade Mark Rules, in the subject assessment years, even then, the International classification had a significance as per the rules which is evidenced from Rule 22 which is extracted herein:- Rule 22. “Classification of goods and services: (1) For the purpose of the registration of trade marks, goods and services shall be classified in the manner specified in the Fourth Schedule. “Classification of goods and services: (1) For the purpose of the registration of trade marks, goods and services shall be classified in the manner specified in the Fourth Schedule. (2) The goods and services specified in the Fourth Schedule only provide a means by which the general content of numbered international classes can be quickly identified. It corresponds to the major content of each class and are not intended to be exhaustive in accordance with the international classification of goods and services. For determining the classification of particular goods and services and for full disclosure of the content of international classification, the applicant may refer to the alphabetical index of goods and services, if any, published by the Registrar under Section 8 or the current edition of the international classification of goods and services for the purpose of registration of trade mark published by the World International Property Organisation or subsequent edition as may be published. 3. The Registrar shall identify and include in the alphabetical index of classification of goods and services, as far as practicable, goods or services of Indian origin.” So the goods and services specified in the Fourth Schedule provided a means by which the general contend of numbered international classes can be quickly identified. The items shown there, only corresponds to the major component of each class and was not intended to be exhaustive. Even as per the Trade Marks Rules, 2002 before its amendment in the year 2013, determination of classification of particular goods and services had to be with reference to the International Classification. As we saw from the authoritative text, the alphabetical list of goods shows “rusk” and “bread” as species of the class or genus in class 30, as held in Vishnudas Trading [supra]. The enumeration in Class 30 as per Fourth schedule can only be considered to be the genus of which rusk and bread are the species. 22. In this context, we also have to look at the KVAT Act and the understanding of the State legislature in bringing out various entries under the different schedules. The enumeration in Class 30 as per Fourth schedule can only be considered to be the genus of which rusk and bread are the species. 22. In this context, we also have to look at the KVAT Act and the understanding of the State legislature in bringing out various entries under the different schedules. As we earlier noticed, “bread of all kinds” as seen from Entry 6 of First Schedule is aligned to a 8 digit HSN Code; which by reference to Customs Tariff Act indicates rusks and toasted bread products to be excluded from that category which is aligned to the specific 8 digit HSN Code; as we earlier found with reference also to the number of “-” preceding the entries in the Customs Tariff Act. However the items including breads sold under brand name registered under the Trade Marks Act, is included in S.R.O No. 82/2006 exigible to a higher rate of tax. In this context, we have to notice the Rules of Interpretation of Schedules as seen from the Appendix of the KVAT Act. We specifically extract Sl.No.5 as follows: “5. Breads of all kinds under entry 6 of first schedule does not include crisp bread, ginger bread and pizza bread.” Hence what was excluded from breads of all kinds were only crisp bread, gingerbread and pizza bread which were brought under SRO No. 82/2006, in Entry 11. Entry 11 also included “rusk, toasted bread and similar toasted products” and if the legislature understood those toasted products as included in the category of breads, then, definitely there would have been a specific exclusion provided as was provided in the case of crispbread, gingerbread and pizza bread. The KVAT Act, in that context can only be considered to have dealt with bread and rusk as two different products. 23. It is based on this reasoning, we have to examine whether the toasted products manufactured and sold by the assessee can be said to be sold under the brand name registered under the Trade Marks Act. We are of the definite opinion; which opinion is fortified by Kilban Foods India P. Ltd.(supra); that though the assessee has obtained registration of a trade mark it applies only to “all kinds of breads” and does not include the toasted products as seen from Entry 11 of SRO 82 of 2006. We are of the definite opinion; which opinion is fortified by Kilban Foods India P. Ltd.(supra); that though the assessee has obtained registration of a trade mark it applies only to “all kinds of breads” and does not include the toasted products as seen from Entry 11 of SRO 82 of 2006. Entry 11(6) under which the assesee's toasted products fall cannot be said to have a brand name registered under the Trade Marks Act as per the KVAT Act. We already found that bread and rusk as per the classification enabled under the Trade Marks Act are distinct products falling under the same class. So is the distinction palpable as discernible from the entries under general heading with HSN code 1905; under the Customs Tariff Act. We hence find the assessee's product to be covered under Entry 7 of the Third Schedule which deals with bakery products other than those sold under brand name registered under Trade Marks Act. We hence answer the question raised against the assessee insofar as the claim for exemption under First Schedule and against the Revenue on the claim of inclusion under SRO No. 82/2006 and declare the toasted products of the assessee to be exigible to tax under the Third Schedule. OTRev.193/2015 will stand allowed, setting aside the order in TA(VAT) No.50/2014; with the declaration as above on the question of classification raised. 24. As for the penalty, there was a reduction effected to Rs.1,00,000/-, in place of the penalty imposed of Rs.16,99,600/-. From the facts and circumstances as also by reason of the debatable issue, which has been answered by the statutory authorities in a manner distinct from the approach of this Court, we are of the opinion that there should be no penalty imposed. The question of law is answered in favour of the assessee and against the revenue. There is no ground for imposition of penalty. OT Rev.184/2015 will hence stand allowed, setting aside the order in TA(VAT) No.566/2012. Ordered accordingly. No order as to costs.