9911796707
TMI Blog2018 (5) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for exemption from GST in terms of relevant entries to Notification No.2/2017 Central tax (Rate) dated 28th June 2017 ('CGST Notification'), and, the corresponding entries under Notification No.2T2017-lntergrated tax (Rate) dated 28th June 2017 ('IGST Notification') and Notification No.2/2017-State Tax (Rate) dated 29th June 2017) [collectively referred to as 'the Exemption Notifications']? 2. Whether the subject goods proposed to be sold under Stream 2 (refer Annexure I), where the package of the subject goods would have a declaration mentioning the name and registered address of the manufacturer as per the statutory requirement under the Subject Statutory Provisions as also the declaration 'Marketed by-Aditya Birla Retail Limited' can be considered as 'not bearing a brand name', and, accordingly eligible for exemption in terms of relevant entries to the Exemption Notifications? 3. Whether the declarations made on the package, by inter alia using common/generic terms viz,. 'value' 'Daily', 'Superior' and 'Choice', for the sole purpose of indicating the quality of the product so as to enable the customers to identify and buy products base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such streams is as follows: (i) Stream 1- Subject goods processed and packed in-house by the Applicant: The Applicant procures unprocessed food products from various vendors and undertakes processing and packing in its own units. Such processing would generally involve sorting, quality assessment, grading etc. The subject goods would thereafter be sold by the Applicant from its More Stores. The list of subject goods which are sold under Stream 1, together with the list of processing units of the Applicant located across India, are collectively enclosed as Exhibit A. The package of subject goods sold by the Applicant under Stream 1 inter alia bears the name of the Applicant as being the manufacturer and the registered trademarks viz. 'More trademarks' and the 'Aditya Birla' logo. A sample package thereof is enclosed as Exhibit B. (ii) Stream 2- Subject goods are procured in processed and packed form from third party vendors: Unprocessed food products are procured by third party vendors and subsequently processed and packed, in terms of the quality standards fixed by the Applicant. The subject goods are thereafter procured by the Applicant for being sold from its More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing a 'registered brand name', attract GST at the rate of 5%. The Applicant, in respect of supply of the subject goods under either strems, is presently discharging GST at the rate of 5%. 6. It is relevant to note that the requirement to have specific declaration on the package of the subject goods, as regards its manufacturer, is a statutory requirement in terms of the Legal Metrology Act, 2009 read with the Legal Metrology (Packaged Commodity) Rules, 2011, and, the Food Safety and Standards Act, 2006 read with Food Safety and Standards (Packaging and Labelling) Regulations, 2011, the relevant extracts of which legislations [collectively referred to as Subject Statutory Provisions'] are provided below- Legal Metrology Act, 2009 'Section 18 Declarations on pre-packaged commodities.- (1) No person shall manufacture, pack, sell, import distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such slandered quantities or number and bears thereon such declarations and particular in such manner as may be prescribed' Legal Metrology Packaged Commodity) Rules, 2011 'Chapter II- Provisions Applicable To Package Inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it indicates that the product is of a standard quality, The term 'Choice' with a corresponding statement that the said term is merely a quality indicator and that it Indicates that the product is of a premium quality. - The term 'Superior ' with a corresponding statement that the said term is merely a quality indicator and that it indicates that the product is of a superior quality. The sample artwork for the packages intended to be adopted for the subject goods to be sold under Stream 1 and Stream 2 are annexed herewith as Exhibit E and Exhibit F respectively. 8. Vide this Application, the Applicant is seeking an advance ruling on the question of applicability of certain Notifications in respect of the subject goods intended to be sold by the Applicant in the proposed packaging, which issue is more particularly described in Annexure Il hereto. Annexure II - STATEMENT CONTAINING APPLICANT'S INTERPRETATION OF LAW AND/OR FACTS, AS THE CASE MAY BE, IN RESPECT OF THE QUESTION(S) ON WHICH THE ADVANCE RULING IS REQUIRED I. Submissions of Applicant 1.1 The applicant's submissions as regards the two questions raised in the present application are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se "brand name" means brand name or trade name, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. (b) The phrase "registered brand name" means, - (A) a brand registered as on or after the 15th May 2017 under the Trade Marks Act, 1999 irrespective of whether or not the brand is subsequently deregistered; (B) a brand registered as on or after the 15th May2017 under the Copyright Act, 1957(14 of 1957); (C) a brand registered as on or after the 15th May2017 under any law for the time being in force in any other country" The range of cereals, pulses, etc. (subject goods), being supplied by the Applicant are covered under the various headings sub-headings of Chapter 10 to the First Schedule to the Customs Tariff Act, 1975. The said goods would be covered under different serial numbers of the Exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which an actionable claim or enforceable right in a court of law is available ' 1.9. The definition of the term 'registered brand name'. as provided in the CGST Notification, covers brands which were registered under the specified legislations as on 15th May 2017. Considering that under the proposed transaction. the registered trademarks, namely 'More trademarks' and the 'Aditya Birla' logo would not be mentioned on the packaging of the subject goods marketed under both the transaction streams, the packages cannot be said to be bearing any 'registered brand name 1.10. It therefore needs to be examined whether, in terms of the declarations that would be made on the packages to be sold under Stream 1 and Stream 2, the subject goods can be said to be "bearing a brand name on which an actionable claim or enforceable right in a court of law is available In terms of the CGST Notification, where the goods bear a brand name on which an actionable claim or an enforceable right is available in the court of law, the Applicant can file an affidavit with the jurisdictional commissioner of Central tax to the effect that it IS voluntarily foregoing its actionab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;Cadbury Dairy Milk'. It is evident that the brand name indicating a connection in the course of trade between the product, namely 'Milk Chocolate' is 'Cadbury Dairy Milk' and not 'Mondelez India Foods Private Limited' Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Astra Pharmaceuticals (P) Ltd. vs Collector of C. Ex, Chandigarh [1995 (75) E.L.T. 214 (S.C.)], wherein, the Hon'ble Court, while examining the scope of certain Central Excise Notification inter alia noted that brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. 1.13. With the above in view, reliance is further placed on the following decision of the Courts wherein the issue under consideration was whether the name of the manufacturer/packer, which is required to be mentioned on the package of the product in terms of a statutory requirements, can be considered to be a 'brand name': (i) In case of Tarai Foods Limited Vs. CCEx. Meerut-II 2006 (198) 323 (S.C.), the Hon'ble Supreme Court has inter alia examined whether the definitions of 'brand name' would in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definite, plain and conspicuous declarations as to, inter alia, the name and address of the manufacturer (see Rule 6 & 10). In other words, unit container would have to bear the name of the manufacturer. If the name of the manufacturer were to be a brand name then this would mean, that there would be no unbranded unit container at all in law and distinctiveness of T.H. 2001.10 would be meaningless. 9. Furthermore the definition of the words 'brand name' shows that it has to be a name or a monograms which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identify of a person itself. It has to be something else which is appended to the product and which establishes the link. 11. There is a value attached to the brand name, value which has been recognized in the tariff entry by providing for levy pf excise duty on goods bearing a brand name. It may be that the application had deliberately omitted the brand name in selling the 'French Fries' to avail of the nil rate of tariff. This cannot detract from the consequences which would follow in law. If the assessee opts not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e examining the scope of the definition of 'brand name' (which definition was similar to the definition adopted in the Exemption Notifications) held that since there is a statutory requirement that manufacturer's or packer's name and address should be indicated on the package of goods under the Standards of Weights & Measures Act, 1976 and Rules made thereunder, the indication of manufacturer' s name on the package would not render the goods as branded goods. The relevant extract is as follows: "if the Revenue's plea that indicating the manufacturer's name would amount, to affixing brand name is accepted, then all the goods containing manufacturer's name would be branded goods which highly illogical. In fact in respect of the packaged goods, there are statutory requirements that the manufacturer's or packer's name and address should be indicated on the packages of the goods under slandered of Weights & Measures Act, 1976 and the rules made thereunder. Indicating the names and address of the manufacturer on the packages cannot be construed as affixing the brand name." In addition to the above, reference is made to the following circulars: (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, as specifically highlighted in Exhibit G to this Application. Question II - Where the packaging of subject goods mentions the declaration 'Marketed by Aditya Birla Retail Limited' in addition to the name and registered address of the manufacturer, whether the same would be construed to be a 'brand name': 1.18. As submitted in the forgoing paragraphs, as held by the Hon'ble Supreme Court in the case of Tarai Foods (Supra), the name of a company, which is its identity, cannot be construed to be a 'brand name', in view of the meaning provided to the phrase. It has to be something apart from the name of the company, which is appended to the product to establish a connection in the course or trade. Further, in the case of Pepsi Foods (supra), the Hon'ble Supreme Court has held that mere printing of the name of the company on unit container does not make the package branded, unless brand itself is printed specifically. 1.19, Accordingly, Where the declaration 'Marketed by Aditya Birla Retail Limited' is made onto the packaging of the products, without actually affixing the logo / brand of Aditya Birla Retail Limited, the same would not amount to brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same product. Considering that the said terms would therefore not indicate any connection in the course of trade between the Applicant and the products, but would only reflect its quality versions, the same would not qualify as 'brand name'. 1.23. In this regard, it is also relevant to refer to Section 9 of the Trade Marks Act, which lays down the 'absolute grounds of refusal of registration' of a name or mark or a logo, as a trademark under the said Act. Section 9(1)(b) states that a trade mark 'which consist exclusively of marks or Indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service', shall not be registered. The definition of 'trademark' as provided in Section 2(zb) of the Trade Marks Act is broadly similar to the definition of the term 'brand name' under the Exemption Notifications to the extent it includes a mark or a name that indicates 'a connection m the course of trade between the goods or services, as the case may be, and some person having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be construed to be a 'brand name' for the purpose of the Exemption Notifications. Exhibit A 1. List of subject goods which are sold under Stream I Sr.No. Brand Product description HSN Code 1. Bajra 100821020 10082920 2. Barley 10039000 3. Basmati Rice 10063020 4. Boiled Rice 10063010 5. Brown Rice 10062000 6. Jawar 10082910 10082110 7. Maize 10059000 8. Rags 10082930 10082130 9. Rice-Others 10063090 10. Wheat 10019910 2. Location of Applicant's Sr. No. Location 1. Bangalore 2. Delhi 3. Hyderabad 4. Pune 5. Chennai 6. Cochin 7. Kolkata Exhibit C List of subject goods which are sold under Stream 2 Sr.No. Broad Product description HSN Code 1. Barley 10039000 2. Boiled Rice 10063010 3. Rice-Others 10063090 4. Maze 10059000 5. Brown Rice 10062000 Exhibit G Classification of subject goods under the corresponding entries to the CGST Notification Sr.No. Broad Product description Stream HSN Code Sr.No. as per Notification no. 02/2017-Central Tax (Rate) 1. Bajra Stream 1 10082120 10082920 72 2. Basmati rice Stream 1 10039000 70 3. Jowar Stream 1 10063020 72 4. Ragi Stream 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the Applicant, considering that the brand name vide which its products are recognised in the market are proposed to be removed from its packaging, and, its name, which would be mentioned in the proposed packages, is not identified with its product. * Further, there would also be such illustrations where the product is identified with the name of the company. An illustrative list in this regard is enclosed as Annexure I. As evident, this strictly holds true in case where the product is eponymous to the manufacturer, which is not the case of the Applicant. Other key submissions Question Submissions Question 1 (a) It is a settled law, inter alia in terms of the following decisions that mentioning of the name of the manufacturer on the package of a product, in terms of statutory requirements, cannot render the product branded- * Tarai Foods Limited Vs CCEx. Meerut-II 2006 (198) 323 (S.C.)- 'Under the Standard Weights and Measures (Packets Commodities) Act. 1977 every packet is required to bear thereon or on a label squarely affixed thereto a definite, Plain and conspicuous declaration as to, Inter alia. the name and address of the manufacturer (see Rule 6 & 10). In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct which is sold in packed form would be considered as branded. To this extent, the requirement that the product should bear a brand name would be rendered redundant, considering that a product sold in a unit container (and therefore being governed by FSSA and FSSA Regulations) would necessarily disclose the name of the manufacturer in every case. * It is a settled law that the courts should always presume that the legislature inserted every part in a statute/ notification for a purpose and the legislature's intention is that every part of a statute should have effect and that a construction which results in redundancy of some part of a statute, must not be accepted. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Bansal Wire Industries Ltd vs State or U.P. [2011 (269) EL.T. 145 (S.C.)] wherein the Hon'ble Court laid down that it 'is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of 'he cardinal principles of interpretation of any stance that some meaning must be given to the words used in the section' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not establish any relationship between the mark and the medicine. For instance, if the appellant instead of using Dextrose injections would have described it as Astra injection or Astra Dextrose injection then it could be said that a relationship between the monograph and the medicine was established. In the case of appellant it was only a monograph to identify the manufacturer' * CCEx. Vs West Bengal Chemical Industries Limited, [2006 (200) E.L.T. 68 (Tri. - Kolkata)]- 'The Commissioner (Appeals) has also observed in the impugned Order that no consumer asks for Mother Dairy' when he or she wants to buy Mineral Water by referring to a specific brand - 'Aquafina' or 'Kinley' or Bisleri'. I also Mind that 'Mother Dairy' even if it is taken as a Brand Name, does not amount to a single product, which rather refers to a basket of products that include milk, butter, cheese, mineral water and what not. Taking into account the fact that the label clearly indicates that the product in question is marketed by Mother Dairy', it cannot be said that the brand name - 'Mother Dairy' - has been used.' (b) Further, in terms of the said definition, brand na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant Para 2(i)- Details proposed to be disclosed on the packages have not been provided In course of the admission hearing it was revealed that the said submission was made owing to the fact that the office of the AAR had inadvertently missed in providing the Departmental Representative with the copy of the annexures to the Application. It was therefore stated that the Applicant would provide the Departmental Representative with a complete set of the Application. The same has been filed thereafter and corresponding acknowledgment. Para 2(ii)/(iii)- It is not clear as to whether details to be disclosed on the proposed packages were registered under the Trade Marks Act/ Copyright Act, as on 15th Ma 2017. The Applicant proposes to remove from the package of subject goods all of its registered trade marks [Annexure V]. It is confirmed that disclosures proposed to be make in the packages do not pertain to any of Applicant's trademarks registered under the Trade Marks Act/Copyright Act, either before or after 15th May 2017. Para 2(iv)- For being eligible for exemption under the Exemption Notifications, it is necessary that the Applicant forges the enforceable right/actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India AIR 2002 Del 458 (db), Delhi Admn. (NCT of Delhi) v. Manohar Lal (2002) 7 SCC 222, Haryana Financial Corpn. v. Jagadmba Oil Mills (2002) 3 SCC 496 and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) (2002) 257 ITR 123 (Del).]' * Armaendra Pratap Singh v. Tej Balendar Prajapati - 2004 (10) SCC 65= 'A judicial decision is an authority for what it actually decides and not for what can be read into by implication or by assigning an assumed intention to the judges' * Reliance is also placed on the decision of the Hon'ble Tribunal in the case of CCE, Thiruvananthapuram vs Jaya Stores [2010 (251) E.L.T. 145 (Tri.-Bang.)] wherein the decision of the Hon'ble Supreme Court in Grasim was distinguished and it was held that 'the Commissioner (Appeals) was correct in his finding that the particulars tentatively held to constitute a brand name in the Show Cause Notice were actually particulars off the manufacturer packer of a food product bound to be displayed on the package of refined oil ' * In the context of Question 2- In Grasim's case (supra), the Hon'ble Court was concerned with the scope of the term 'brand name' in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to have furnished all the relevant information and details in his application necessary to decide the issue. However scrutiny of the documents received has revealed that the applicant has not provided following information/details which are crucial for taking decision in the matter:- i) Though the applicant has informed which details would not be given on the packaging, no clear and unequivocal information has been given in clear terms about the details which would be displayed on the packages. Moreover the applicant ought to have made available the samples of intended packaging to the respondent to examine the facts and issue. No such samples have been provided to the respondent. ii) The applicant has not informed whether the details he intends/proposed to give on the packages i,e. his name and address, were registered as on the 15th May 2017 under the Trade Mark Act, 1999. These details are relevant considering the meaning of the term 'registered brand name' given under the exemption notifications which includes a brand registered as on 15/05/2017 under the Trade Mark Act, 1999 irrespective of whether or not the brand is subsequently deregistered. iii) The applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the packages of goods packed in unit container, without affixing any brand name/logo, can be considered as 'not bearing a 'brand name' and whether accordingly the applicant would be eligible for exemption from payment of GST in terms of relevant entries to Notification No.2/2017 CT (rate) dated 28/6/2017 as amended and corresponding entries under Notification No. 02/2017 Integrated Tax (rate) dated 28/6/2017 and Notification No.2/2017 State Tax (rate) dated 28/6/2017 (collectively referred to as 'the exemption Notifications') ii) The attention is invited towards the Explanation appended to said Exemption Notifications where in meaning of the term 'brand name 'has been explained which even includes 'name' which is used in relation to specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name. iii) The main contention of the applicant is that mere mention of name of the manufacturer and/or packer, which is a statutory requirement, on to the packaging of subject goods, cannot render the product to be construed as bearing the brand name. In suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of manufacturer and packer of the goods. Still the applicant intends and proposes to furnish his name/address on the packages of subject goods procured from third parties, as 'marketing concern' Hence it's obvious that the applicant desires to furnish these details on his own. The purpose of the same is obvious i.e. to impress upon the consumers the important fact that the subject goods are of the applicant. This also makes it clear that in case of the subject goods proposed to be processed and packed by the applicant himself also, besides statutory requirements, the applicant intends to derive the benefit of associating his name with subject gods by declaring his name as manufacturer on packages. This further strengthen the argument that the name of the applicant furnished on the packages, whether as a manufacturer or marketing concern, is used in course of trade to connect the subject goods with his name and therefore in both these cases, declaration of name on package would amount to use of brand name. 5. In view of the facts discussed in foregoing paragraphs, it is submitted that the name and address proposed to be furnished on the packages of goods by the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds fixed by the Applicant. The subject goods are thereafter procured by the applicant for being sold from its More Stores, * The package of subject goods sold by the Applicant under Stream 2 inter alia bears the name of the manufacturer, the declaration 'Marketed By - Aditya Birla Retail Limited' and the registered trademarks viz. 'More trademarks' and the 'Aditya Birla' logo. In the application, it has, also, been informed thus - * The Applicant intends to revise the packaging of the subject goods and the manner in which the subject goods are put up sale, to exclude from the packages the registered trademarks, namely 'More trademarks' and the 'Aditya Birla' logo. The proposed packaging of subject goods under both streams would accordingly bear the following details: * Subject goods sold under Stream 1:- The packaging would bear only details of the Applicant as the manufacturer, as mandated under the Subject Statutory Provisions. * Subject goods sold under Stream 2:- The packaging would bear details of the manufacturer, as mandated under the Subject Statutory Provisions. and would have a declaration- 'Marketed by Aditya Birla Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "Pkg. Material Mfg. by XXX" The applicant contends the applicability of certain entries of the Notification No.2/2017 - Integrated /Central / State Tax (Rate) dated 28th June 2017 with regard to the goods supplied. This Notification exempts the goods enlisted therein from the applicability of the GST. The products are different but these entries, as claimed to be applicable, are framed in a certain manner. The applicant has taken the example of the entry no.65 of the aforesaid Notification. We shall have a look at the same: S.No. Chapter/Heading/Sub-heading/Tariff item Description of Goods 65. 1001 Wheat and meslin other than those put up in unit container and, - (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions as in the ANNEXURE 1] The goods would be sold in unit containers. However, it is the contention that the condition after 'and' is not being satisfied as the mention of the name of "Aditya Birla Retail Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in unit containers are two different persons, then the person having an actionable claim or enforceable right on a brand name shall file an affidavit to that effect with the jurisdictional Commissioner of Central tax of the person undertaking packing of such goods that he is voluntarily foregoing his actionable claim or enforceable right on such brand name as defined in Explanation (ii)(a); and he has authorised the person [undertaking packing of such goods in unit containers bearing said brand name] to print on such unit containers in indelible ink, in English and the local language, that in respect of such brand name he [the person owning the brand name] is voluntarily foregoing the actionable claim or enforceable right voluntarily on such brand name. Since the notification has defined the meaning of 'brand name', we refer to the same. As can be seen the 'brand name' is defined to mean a "brand name or trade name", The definition makes use of the words "that is to say". Therefore, the following would be a "brand name or trade name" - * a name or a mark such as symbol, monogram, label, signature or invented word or writing * which is used in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 billion corporation, the Aditya Birla Group is in the League of Fortune 500. Anchored by an extraordinary force of over 120, 000 employees, belonging to 42 nationalities. Over 50 per cent of its revenues flow from its overseas operations spanning 35 countries. The Aditya Birla Group has been ranked fourth in the world and first in Asia Pacific in the Top Companies for Leaders' study 2011, conducted by Aon Hewitt, Fortune Magazine and RBL (a strategic HR and leadership advisory firm). The Group has topped the Nielsen's Corporate Image Monitor 2014-15 and emerged as the 'No. 1 Corporate', the 'Best in Class', for the third consecutive year. . ..Among the most trusted business houses in India, Aditya Birla Group is well known for its corporate governance and financial management. Our logo The name Aditya Birla exemplifies integrity, quality, performance, perfection and above all character. Our logo is the symbolic reflection of these traits. It is the cornerstone of our Corporate Identity. It helps us leverage the unique Aditya Birla brand and endows us with a distinctive visual image. On the imagery and the nuances of the new mark: The bright colourful s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal care, home care, general merchandise and a basic range of apparels. Currently, there are 523 supermarkets across the country. Hypermarkets. More Megastore is a one-stop shopping destination for the entire family. Besides a wide range of products comprising fruits and vegetables, groceries, FMCG products, More Megastore also has a strong emphasis on general merchandise, apparel, consumer durables and IT goods. Currently, there are 20 hypermarkets across the country. Own Brands more strives to delight customers through a wide range of brands that deliver high quality at attractive prices across ready-to-eat food, beverages, tea, staples, cereals, instant mixes, papad, pickles, apparel, footwear, household cleaning essentials, personal care and devotional products. The power brands - VOW, Kitchen's Promise and Feasters - deliver world-class quality to discerning consumers. All these brands are developed in-house. In addition, our Own Brands across categories include Prarthana, More Choice, More Daily, More Life, Bluearth, Karinee, Kruff Incheels, TRU, Chatter Kids and Yo. ABRL aspires for our range of brands to be a customer's most preferred brand across product catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f availability of the products of the applicant only at the More Stores, it would be relevant to refer to the decision of the Hon. Supreme Court in CCE v. Australian Foods India (P) Ltd., (2013) 12 SCC 468 : (2014) 1 SCC (Civ) 701 : 2013 SCC OnLine SC 58 at page 474. We reproduce herein the observations thus - "12. We are unable to appreciate as to how a compulsory requirement of physical manifestation of a brand name on the specified good, for it to be construed as a branded good. can be derived from the above passage. The decision in the above case simply recognises that the benefit would be lost only if a manufacturer affixes the specified goods with a brand or trade name of another who is not eligible for the exemption under the notification. It does not state that the specified good must itself bear or be physically affixed with the brand or trade name. Such an interpretation would lead to absurd results in case of goods which are incapable of physically bearing brand names. For instance, the goods which, due to their very nature and structure, are incapable of bearing brand names, would always be deemed unbranded. Liquids, soft drinks, milk, dairy products, powders, edible p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 7) "5. Clause 4 of the notification is unambiguous and clear. It specifically states that the exemption contained in the notification shall not apply to specific goods which bear a brand name or trade name (registered or not) of another person. It is settled law that to claim exemption under a notification one must strictly comply with the terms of the notification. It is not permissible to imply words into the notification which the legislature has purposely not used. The framers were aware that use of a brand/trade name is generally to show to a consumer a connection between the goods and a person. The framers were aware that goods may be manufactured on order for captive consumption by that customer and bear the brand/trade name of that customer. The framers were that such goods not reach the market in the form in which they were supplied to the customer. The framers were aware that the customer may merely use such goods as an input for the goods manufactured by him. Yet Clause 4 provides in categorical terms that the exemption is lost if the goods bear the brand/trade name of another, Clause 4 does stare that the exemption is lost only in respect of such goods as reach the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment in Kohinoor Elastics case [Kohinoor Elastics (P) Ltd. v. CCE, (2005) 7 SCC 528] and a distortion of the concept of a brand or trade name. The above judgment makes no such observation and was delivered on a completely different set of facts and circumstances. 15. Kohinoor Elastics case [Kohinoor Elastics (P) Ltd. v. CCE, (2005) 7 SCC 528] involved a case of undergarments manufactured by a producer P2, which used branded elastics produced by P1, and retained the brand name of P1 in the final product P2 was denied exemption under the same notification involved in the present case because of the appearance of brand name of another i.e. P1, not covered by the same notice P2 argued that the presence of P1's brand name should no be taken as a basis for disqualification from the benefits of the exemption since the customer buying the good would continue to associate the good with P2 and not P1, thus making it a branded good of only P2. This court rejected the contention and held that P1 is providing a stamped input for captive consumption to P2 "because he wants the ultimate customer to know that there is a connection between the product and him". The Court further observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Pakkwell Traders [(2004) 11 SCC 801] observed thus: (SCC p.804 para 6) "6. The Tribunal had also held that under the notification the use must be of 'such brand name The Tribunal has held that the words 'such brand name show that the very same brand name or trade name must be used, The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not), that is to say, a name or a mark. code number, design number. drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or nude name, so long as it Indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under 'he notification. In this case, admittedly. the brand name or trade name is the word 'ARR' with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table presumption arises in favour of such goods being branded goods of the specified store. Such a presumption can be rebutted If it is shown that the specified good being sold is in fact a branded good of another manufacturer. Thus, branded potato chips, soft drinks, chocolates, etc. though sold from Such outlets, will not be considered to be goods of such outlets. However, all other goods, sold without any appearance of a brand or trade name on them, would not be deemed unbranded goods; to the contrary. they may be deemed to be branded goods of that outlet unless a different brand trade name appears. 21. Hence, we hold that it is not n for goods to be stamped with a trade or brand name to be considered as branded goods under the SSI notification discussed above. A scrutiny of the surrounding circumstances is not only permissible, but necessary to decipher the same; the most important of these factors being the specific outlet from which the good is sold. However, such factors would carry different hues in different scenarios. There can be no single formula to determine if a good is branded or nor; such determination would vary from case to case. Also, our observations must be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se pup up m unit container and,- (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntary subject to the conditions as in the ANNEXURE ] Explanation. - (ii) (a) The phrase "brand name" means brand name or trade name, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. (b) The phrase "registered brand name " means, - (A) a brand registered as on or after the 15th May 2017 under the Trade Marks Act, 1999 irrespective of whether or not the brand is subsequently deregistered; (B) a brand registered as on or after the 15th May2017 under the Copyright Act, 1957 (14 of 1957); (C) a brand registered as on or after the 15th under any law for the time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berations as held hereinabove, we pass an order as follows : ORDER (under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.GST-ARA-13/2017/B-16 Mumbai, dt. 23/03/2018 For reasons as discussed in the body of the order, the questions are answered thus - Q1. Whether the subject goods, proposed to be sold under Stream 1 (refer Annexure l), where the package of the subject goods would merely have a declaration mentioning the name and registered address of the Applicant as the manufacturer, as per the statutory requirement under Subject Statutory Provisions, can be considered as 'not bearing a brand name', and, accordingly eligible for exemption from GST in terms of relevant entries to Notification No.2/2017 Central tax (Rate) dated 28th June 2017 ('CGST Notification), and, the corresponding entries under Notification No. 2/2017-Intergrated tax (Rate) dated 28th June 2017 ('IGST Notification') and Notification 2/2017-Stnte Tax (Rate) dated 29th June 2017) [collectively referred to as 'the Exemption Notifications']? A1. Answered in the negative. Q2. Whether the subject goods proposed to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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