Packing the dispute of branded goods on packing material

[Pradeep Jain]

CA. Pradeep Jain,

Sukhvinder Kaur LLB [FYIC]

And CA Ridhi Anchalia

Introduction: -

There are already two articles published on our website www.capradeepjain.com on this issue. The title of these articles was "SSI exemption: - The branded issue" and "Brand name for packing material: - all is well when ends well". The budget has made further amendment while passing the budget to end the controversy. This amendment has prompted us to write this third piece on this very same issue. We will discuss the issue in brief to have a better understanding of the subject and thereafter will discuss the implications of this amendment,

Provisions related to packing material in Notification: -

Paragraph 4 of the Notification provides as under: -

4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases: -

(a) where the specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001:

Provided that manufacturers, whose aggregate value of clearances of the specified goods for use as original equipment does not exceed rupees one hundred lakhs in the financial year 2002-2003 as calculated in the manner specified in paragraph 1, may submit a declaration regarding such use instead of following the procedure laid down in the said Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001;

(b) where the specified goods bear a brand name or trade name of-

(i) the Khadi and Village Industries Commission; or

(ii) a State Khadi and Village Industry Board; or

(iii) the National Small Industries Corporation; or

(iv) a State Small Industries Development Corporation; or

(v) a State Small Industries Corporation;

(c) where the specified goods are manufactured in a factory located in a rural area;

(d) where the specified goods are account books, registers, writing pads and file folders falling under heading 4820 or 4821 of the said First Schedule.

(e) where the specified goods are in the nature of packing materials and are meant for use as packing material by or on behalf of the person whose brand name they bear."

Brief history: -

To have a better look on the above subject we proceed with a glance on the decision of the Apex Court in the case of M/s Kohinoor Elastics Pvt Ltd 2005 -TMI - 47406 - (SUPREME COURT OF INDIA). The unit was manufacturer of elastic tape and was affixing the brand name of his customer who was manufacturer of undergarments. The above action was performed as per specific instructions of the customer. The benefit of SSI Exemption was denied saying that it is not available to the goods bearing a brand name/ trade name of the customer, for whom goods are manufactured by a SSI unit, as per the orders of the customer for their further use by the customer in the manufacture of his final product.

The department waked up from the sleep and finally their nightmare for collecting revenue became true with the scope of this judgment. To make its dream come true of collecting revenue the Board came out with the circular on 16.07.08 instructing the field formations to take action wherever SSI units had evaded duty by claiming SSI Exemption but were manufacturing goods bearing brand name or trade name of another person.

So the Excise Authorities became vigilant and started investigating the SSI units. Haphazardly the revenue came out with demands for payment of excise duty imposing the allegation that the units engaged in the manufacture of branded goods at the instructions of the customer were not eligible to avail SSI exemption. In the same league the small scale units manufacturing flexible packing material on specific directions of their customers were also proceeded against by the Department.

If department can wake up why not the assessees. So the eyes of the aseessees also opened and a flower of protest against the action of the Department blossomed in the garden of Trade and Industry making various representations which lead to amendment of the Notification No. 8/2003 - CE. The Board now came out with a new Notification No. 47/2008-CE, dated 01.09.08 amending the said Notification by adding clause (e) to paragraph 4 which read as under:

"(e) Where the specified goods are in the nature of packing materials, namely, printed cartons of paper or paper board, metal containers, HDPE woven sacks, adhesive tapes, stickers, PP caps, crown corks, metal labels."

Although this was a welcome step taken by the Government for the assessees but a thorn was left behind with the flower. The word 'namely' in the para restricted the availability of SSI exemption to printed cartons of paper or paper board, metal containers, HDPE woven sacks, adhesive tapes, stickers, PP caps, crown corks, metal labels. But packing material like pouches and plastic bags were left for the exemption. A great favour!!!!

Afterwards, these were also added on the representation of the association. This practice was continued till presentation of this budget to add specific packing materials on representation of the associations. Even in this budget, the plastic bottles were added. An article on this subject pointed out this and said that why the exemption is granted to plastic bottles and not to glass bottles. This has opened the eyes of Board and they were inspired for this latest amendment which will be discussed in coming paras.

Section 11C Notification: -

Oops! What happened when the amendment was not given retrospective effect? The very active field formation came out with the idea of new demands. They said that when the exemption was granted now then it means it was SSI exemption was not available for past period. The packed gift was in departments hands. The wrapped gift box was opened by the department and here came out demands of duties by way of show cause notices issued to the SSI Manufacturers making branded packing materials.

Thus, there was hue and cry in the industry again. The Board had to issue Notification No. 24/2009-CE (NT) on 21.10.09 granting Section 11C exemption to SSI units manufacturing packing materials, namely printed cartons of paper or paper board, metal containers, high density polyethylene woven sacks, adhesive tapes, stickers, pilfer proof caps, crown corks, metal labels, plastic bags and printed laminated rolls. The exemption from payment of duty had been granted on the said goods manufactured by a unit where the manufacturer had affixed the specified goods with a brand name or a trade name of another person who is not eligible for grant of exemption under the relevant Notification. Wow!! The exemption was granted with retrospective effect. Finally, the issue was settled and SSI manufacturers of specified packing material got the relief from the Board.

But the field formations of the department always have unique ideas. They started hunting for the products which are not covered by the exemption notification and printing brand name of buyer. Each association approached the Ministry and exemption was granted to them. The latest was to give exemption to plastic bottles in this series.

Our Finance Minister Mr. Pranab Mukerjee also did not leave the clause untouched and the following amendment was introduced in paragraph 4: -

(i) in clause (e), for the letters and words "PP caps, crown corks, metal labels, plastic bags, printed laminated roll", the letters and words "PP caps, crown corks, metal labels, plastic bags, printed laminated rolls, plastic containers and plastic bottles" shall be substituted;

(ii) after clause (e), the following proviso shall inserted, namely: -

"Provided that in respect of plastic containers and plastic bottles, the exemption under this notification shall only where such plastic containers or plastic bottles are meant for use as packing materials by the person whose brand name such goods bear."

So the SSI exemption list of packing materials was now extended by adding two more packing materials namely packing bottles and plastic containers. Thus, from the onwards if the units manufacturing plastic containers and plastic bottles who are affixing the brand name or trade name of another person on the same, are eligible to avail exemption under Notification 8/03-CE from Feb 27, 2010.

Latest Development: -

The latest amendment is made vide Notification No. 24/2010-CE, dated 29.04.2010 by which the clause (e) and proviso thereto of paragraph 4 of Notification No. 8/2003-CE, dated 01.03.2003 has been substituted with following clause: -

"(e) where the specified goods are in the nature of packing materials and are meant for use as packing material by or on behalf of the person whose brand name they bear."

The effect of substitution of this provision is that now, small scale exemption granted by Notification No. 8/2003-CE will be available to all kinds of packing material bearing brand name of another entity. As already stated, it was the outcome of the article written by that great scholar who wrote when the exemption is granted to plastic bottle then why not give it to glass bottle also. This has proved the eye opener to Board. They gave away their policy of giving individual exemption to the products whose association has approached them. Now, the exemption was granted to all packing materials.

Before Departing: -

Finally the Government has given a big benefit to all the small scale manufacturers manufacturing packing material on behalf of other persons. But the point is why the Government wants to walk on the snail's trail. Why the Government always take the action after the reaction has already caused some harm? The government for the development of the SSI's should employ them with the best benefits. Then why does not Government take the first step itself. Why always the Government wants the assessee to come forward and represent himself.

Even in this case also, it is not final. Still the retrospective amendment for all the packing materials is required. Again, the so called field formation will come into action and issue show cause notice. The associations will represent the matter. The Board will call for the reports from all the Commissionerates. Then will come the retrospective amendment. All the demands will be dropped. Why this action of retrospective amendment is taken along with the notification? Nobody has the answer. The board has its own style of functioning.

On the last, one more point is being raised through this article. Why not this exemption should also be extended to manufacturers of components? Let us wait for another round of litigation by the department for such manufacturers then the history will be repeated.