2018 (5) TMI 700 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (12) G. S. T. L. 403 (A. A. R. – GST) – Exemption from GST – supply of cereals, pulses and flour – sale under the brand name or not – Whether the subject goods, proposed to be sold under Stream 1, 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 N/N. 2/2017 Central tax (Rate) dated 28th June 2017 and, the corresponding entries under N/N. 2T2017-lntergrated tax (Rate) dated 28th June 2017 and N/N. 2/2017-State Tax (Rate) dated 29th June 2017)?
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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 registe
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r, it also includes a combination of colours. In the present case, we see that the packaging for both the Streams would be using a combination of colours from the logo of the Aditya Birla Group. And we see that the name Aditya Birla also appears on the package. The name “Aditya Birla” is more than sufficient to establish an identity with the goods.
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The observation as to whether the brand name appears in entirety or in parts does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a is conveyed in the course of trade between such specified goods and some person using the mark – In the present case, the applicant also has a family of customers purchasing from the More Stores and associating the Brand with some quality standards. Thus, the customers are aware of the More brand as well as the products of the More brand which are available in the More Stores alongwith products of other manufacturers. Therefore, a new strategy, all of a
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2. – GST-ARA-13/2017/B-16 Dated:- 23-3-2018 – B.V. BORHADE AND PANKAJ KUMAR (MEMBER) PROCEEDINGS (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 The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act ] by Aditya Birla Retail Limited, the applicant, seeking an advance ruling in respect of the following questions: 1. Whether the subject goods, proposed to be sold under Stream 1 (refer Annexure I), 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 GS
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alue 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 based on their requirements, budget and preference can be constructed to be a brand name for the purpose of the Exemption Notifications? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act/ MGST Act would be mentioned as being under the GST Act . 02. FACTS AND CONTENTION – AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- Annexure 1 – STATEMENT OF THE RELEVANT FACTS HAVING A BEARING ON THE QUESTION(S
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is the registered trademark of Aditya Birla Management Corporation Pvt. Limited, under the Trade Marks Act, which trademark has been licensed to the Applicant for specified purposes. 3. The subject goods are either processed and packed 'in-house' by the Applicant (Stream l) or are procured in processed and packed form from third party vendors (Stream 2). The modus operand/ followed by the Applicant in respect of the said transaction streams, and, the nature of details disclosed on the packaging of the subject goods under 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
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d the registered trademarks viz. 'More trademarks' and the Aditya Birla' logo. A sample package thereof is enclosed as Exhibit D. It is relevant to note that some of the subject goods are sold by the Applicant in different quality variants, determined based on various parameters including the quality or size of grains or seeds, nature of processing undertaken, nutritional content, sourcing, etc. It therefore becomes essential for the Applicant to have appropriate disclosures on the package of such subject goods so as to enable the customers to identify and buy products based on their requirements, budget and preferences. Therefore, in respect of such subject goods, under both streams, the package also bears a declaration which acts as a quality indicator (e.g. whether the product is of standard quality, premium quality or superior quality). 4 In the State of Maharashtra, the Applicant sells the subject goods under Stream 1 and Stream 2 from around twenty five More Stores lo
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ne 2017 ('SGST Rate Notification'), the supply of subject goods, When put up in unit containers and infer alia bearing 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, off
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lling) Regulations, 2011 Chapter-2- Packaging and Labelling 6. Name and complete address of the manufacturer- (i) The name and complete address of the manufacturer and the manufacturing unit if these are located at different places and in case the manufacturer is not the packer or bottler, the name and complete address of the packing or bottling unit as the case may be shall be declared on every package of food. 7. The Applicant intends to revise the packaging of the subject goods and the manner in which the subject goods are put up for 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 – 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 bea
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ly 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 set out herein under. Question I – Where the packaging of subject goods merely mentions the name and registered address of the manufa
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supplies of goods, the description of which is specified in column (3) of the Schedule appended to this notification, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedule, from the whole of the central tax leviable thereon under section 9 of the Central Good and Services Tax Act, 2017 (12 of 2017). 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 I] For the purposes of the exemption notification, the terms unit container , brand name and registered brand name have been defined to mean as follows: (i) unit container means a package, whether large
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e 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 Exemption Notifications. However, as the conditions for applicability of the exemption are similar for each of such serial numbers, for ease of reference and for brevity, Sr.No.65 of the CGST Notification is reproduced above. 1.4. In terms of the relevant entries to the CGST Notification, the exemption thereunder would be available to supplies of the subject goods where the following conditions are satisfied: a) Where the subject goods fall under the tariff item, sub-heading, heading or Chapter as specified in the column (2) of the CGST Notification, and; b) Where the subject goods are other than those put up in unit containers, and bearing a registered brand name; Or beari
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onditions is not met, the goods would be eligible for the said exemption. For example, where the subject goods are put up in unit containers but do not bear a 'registered brand name' or a 'brand name on which an actionable claim or enforceable right in a court of law is available the same would fall within the purview of the Exemption Notifications. 1.8. In Applicant's case, under both Stream 1 and Stream 2, the subject goods would be put up in a unit container. The Applicant would be eligible for the said exemption where the declarations made on the package of the subject goods sold under Stream I and Stream 2 do not bear (a) 'registered brand name 'y or, (b), 'brand name on 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 tha
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resent Application, the question merely being examined is whether the said goods bear a 'brand name ' in respect of which an actionable claim or an enforceable right is available under the court of law. 1.11. On plain reading of the aforesaid provision, it is evident that bearing a brand name IS a pre-requisite to the subsequent determination of whether 'an actionable claim or enforceable right in a court of law is available' in respect of such brand name. Where the subject goods do not bear a brand name, such subsequent determination would not arise. 1.12. In terms of the above meaning, a name or a mark would become a 'brand name for the purpose of the CGST Notification, only when the following conditions are satisfied: (i) When such name or mark is used in relation to specified goods; and (ii) When such name or mark is used for the purpose of indicating a connection in the course of trade between such specified goods and the person using the name or mark, With or
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manufacturing and selling it. It is the brand name Maggie' that indicates a connection in the course of trade between the goods and the person using such name. (ii) The product 'Milk Chocolate' is manufactured and sold by Mondelez India Foods Private Limited, under the brand name '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 t
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added sugar or other sweetening matter. 2001.10 -Put up in unit container and bearing name 8% 2001 90 -Other -Nil As regards this case, it is relevant to note the following: -The issue under consideration was the the classification of goods under sub-heading 2001.10 Of Chapter 20 of the Central Excise Tariff (where the conditions required to be fulfilled were, (i) that the product must be put up in unit containers, and (ii) the same must bear a brand name), or, sub-heading 2001.90 of the said chapter (which covered Others ) – The assessee was engaged in the manufacture of vegetable preparation i,e, French Fries and Frozen foods. They had been using two types of packaging for the sale of their product. First packing carried the name Inland Valley along with other details, i.e. the name and registered address of the manufacturer, while the second packing bore all Other details except the words Inland Valley , They classified their first packing under sub-heading No. 2001.10 and cleared
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e 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 assesse
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ifically. It is well settled that in terms of Article 141 of the Constitution of India, the law laid down by the Hon'ble Supreme Court is binding on all the Courts and authorities In the country. Accordingly, in terms of the above decisions of the Hon'ble Supreme Court, mere mention of the name and address of the manufacturer as per the requirement under the Subject Statutory Provisions, without actually printing the brand on the product packaging, would not render the product as bearing a brand name 1.14. In this regard, reliance is further placed on the decision of the Courts on similar issue, in the following cases: (i) In the case of CCEx. vs CESTAT Chennai, [2015 (318) ELT 238 (Mad)], the issue pertained to denial of SSI exemption on account of the assessee clearing manufactured goods using the superscription manufactured and packed by SVS & Sons ; which was contended to be an affixation of brand name by the Department. The Hon'ble Madras High Court while taking no
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me 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) Circular No. 1031/19/2016-CX, dated 14th June 2016, which was issued as regards the levy of Excise duty on readymade garments and made up articles of textiles bearing brand name or sold under a brand name having retail sale price of ₹ 1,000 or more. The Board Vide the said circular clarified that merely where readymade garments or made ups are sold, has a say M/s. XYZ Sons, the readymad
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declared on the packaging of such products in terms of the Subject Statutory Provisions. The declaration of such name of the manufacturer packer would not necessarily establish a connection in the course of trade between the goods and the person actually selling the goods (i.e. the principle on whose behalf the goods are manufactured). Therefore to proceed on the basis that the declaration or name of manufacturer as per the Subject Statutory Provisions, could be construed as 'brand name ' would be erroneous. 1.16 Accordingly, based on the above analysis, it can be said that mere mention of the name of the manufacturer and / or packer, which is a statutory requirement, onto the packaging of subject goods, without actually affixing the company logo, cannot render the product to be construed as bearing a 'brand name . 1.17. The supply of subject goods under Stream I should accordingly be leviable to GST at 'Nil' rate in terms of the relevant entries in the Exemption No
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on 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 branding of subject goods. 1.20. Reliance in the above regard is further placed on the following decisions: (i) In the case of CCEx. vs West Bengal Chemical Industries Limited, [2006 (200) E.L.T. 68 (Tri. – Kolkata)], the issue under consideration was as to whether the declaration, Marketer by Mother Dairy on the packaging of mineral water sold by the assessee, could be construed to be sold under a brand name (which meaning is similar to the meaning provided to the term under the Exemption Notifications). The Hon ble Tribunal therein held that such a declaration indicating that a product is marketed by Mother Dairy cannot be said to be a 'brand name . (ii) In the case of CCEx. vs Paul Aquomin & Foods (P) Ltd., [2009 (244) E.L.T. 278 (Tri. – Kolkata)], on a similar issue, the decision o
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rand name' for the purpose of the Exemption Notifications?: 1.22. As stated, for some of the subject goods, the package would also bear a certain declaration by using common/generic words for the sole purpose of indicating the quality of the product so as to enable the customers to identify and buy products based on their requirements, budget and preferences. Such declarations made on the package by inter alia using common/generic words viz. 'Value 'Choice' and Superior' are only aimed at creating a clearly identifiable distinction between different quality versions 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 registratio
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ions inter alia using common/ generic terms viz- 'Choice 'and Superior', for reflecting the quality of the subject goods, cannot be construed to be 'brand name ' for the purpose of the Exemption Notifications. The supply of subject goods would therefore attract GST at 'Nil' rate in terms of the relevant entries to the Exemption Notifications, as specifically highlighted under Exhibit G to this Application. 1 25. Accordingly, based on the above submissions and analysis thereof, it can be concluded that the subject goods proposed to be sold under Stream I and Stream 2, can be considered to be not bearing a 'brand name' and would accordingly be eligible for exemption from GST in terms of relevant entries to the Exemption Notifications. 2. Prayer In the light of the above, the Applicant prays that the questions referred to this Hon ble Authority be decided in the affirmative, holding the following: (i) The subject goods proposed to be sold by the Applica
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the quality of the product/ variant of the product so as to enable the customers to identify and buy products based on their requirements, budget and preferences cannot 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 t
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of that person. In Applicant's case, the subject goods are presently sold under the brand name 'More' from its 'More' Stores. However, from the More' stores, several similar products, manufactured by different companies, are also sold. Such products may or may not be bearing a brand name. The present package of the products inter alia bearing the 'More 'trademarks are enclosed as Exhibit B (page 21-22) and Exhibit D (page 24-25) of the ARA. Sample pictures of the 'More' stores is enclosed herewith as Annexure G. Customers of the subject goods who enter the 'More stores to purchase the subject goods, associate the subject goods with the 'More' brand name, and, do not necessarily associate/connect the subject goods with the name of the Applicant. Accordingly, it is the 'More' trademarks which establishes a connection in the course of trade between the subject goods and the Applicant. The definition itself indicates that brand na
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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 other words, unit containers 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, there would be no unbranded unit container at all in l
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example. In, can, box, jar, bottle, bag or carton, drum. barrel, or canister) designed to hold a predetermine quantity or number, which is indicated on such package. In terms of the language employed, the requirement of goods being 'put up in unit container', and, bearing a 'brand name ' would have to be cumulatively satisfied so as to exclude the corresponding goods from the purview of the exemption. In terms of Section 18 of the Food Safety and Standards Act, 2006 ('FSSA') 'no person shall manufacturer, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labelled in the manner as may be specified by regulations'. Rule 6 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 ('FSS Regulations') in turn mandates provision of details of the manufacturer of the product on the corresponding package, Relevant extract of the
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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 Reliance in this regard is also placed on the decision of the Hon'ble Bombay High Court in the case of Bharat Cottage Industries vs Union of India [1992 (59) E.L.T. 30 (Bom.)] wherein it was held that it is not permissible for the Court to treat the words of the exemption notification as a mere surplus Question 1 and 2 (a) In terms of definition of the term 'brand name the same must be 'used in relation to such specified goods based on which such goods are asked for by the customer. Therefore, name of manufacturer, which is used across range of products, would not qualify as brand name- Commissioner of C. Ex., Mumbai vs
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using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark ). This practice is more predominant in the pharmaceutical trade. Though both are trade marks are registrable as such, each has its own distinct function. While the house mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement Astra Pharmaceuticals (P) Ltd. vs Collector Of C. Ex, Chandigarh [1995 (75) E.L.T. 214 (S.C.)] 'The 'AP' or 'Astra' on the container or packing was used to project the image of manufacturer generally. It 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
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trade between such specified goods and some person using such name. Therefore, name of a company cannot be a brand name- Tarai Foods Limited Vs CCEx. Meerut-II 2006 [(198) E.L.T. 323 (S.C.)]- the definition of the words 'brand name' shows that has to be a name or a mark or a monogram etc. which is used in relation to a particular product and which establishes a connection between the product and the person, name or mark etc. cannot, therefore, be the Identity of a person Itself. It has to be something else which appended to the product and which establish the link CCEx. vs Pepsi Foods Ltd. [2015 (322) ELT A325 (SC)] Nirula and Company Pvt. Ltd. vs CCEx [2005 (186) E.L.T. 412 (Tri. – Del.)] (Affirmed in 2015 (322) ELT A325[Supreme Court] The impugned order has in terms stared that the goods in question were packed and cleared in packages mentioning……… except the brand name Nirula s . In the present case, the appellant company s name and brand name are quite
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would establish a connection between the product and manufacturer. Therefore, generic words cannot be construed to be a brand name. Submissions in relation to the Written Submission files by the Departmental Representative Submission made by the Departmental Representative Responses of the 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
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me, such subsequent determination would not arise. In terms of the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Trichy vs Grasim Industries Ltd [2005 (183) E.L.T. 123 (S.C.)] 'even the name of some other company, used for the purposes indicating a connection between the product and that company, would he sufficient to constitute a brand name. The said decision rendered by three member bench of the Hon'ble Supreme Court would have precedence over the decisions of the Hon'ble Supreme Court (rendered by two member bench), relied upon by the Applicant i.e. in the Case of Tarai Foods (Supra) and Pepsi Foods (Supra). In context of Question 1- The question which the Hon'ble Supreme Court was sewed with in Tarai Foods (supra) was not before the Hon'ble Supreme Court in the case of Grasim (supra) i.e. whether mentioning of the name of the manufacturer on the package of a product, in terms of statutory requirements, would constitute
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ills (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
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009 (244) E.L.T. 278 (Tri. – Kolkata)], wherein the Tribunal held that a declaration indicating that a product is marketed by 'Mother Dairy' cannot be said to be a 'brand name', specifically stating that Revenue's reliance on the decision of the Hon'ble Supreme Court in the case of Grasim is misconstrued owing to the aforesaid extracted findings. Copyright related disclosure /@Aditya Birla Retail Limited'/- In course or the hearing it was enquired as to whether the name of the Applicant is registered under the Copyright Act. In this regard it is confirmed that the same is not registered thereunder. It is further clarified that the said disclosure in the proposed packaging pertains to the artwork used in the said packaging, which artwork is also not registered under the Copyright Act. To this extent, as the packaging would not reflect a name which is registered under the Copyright Act, the same would not constitute a brand name for the purposes of the Exempti
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f 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 applicant has not informed whether the details he intends/proposes to give on the packages i.e. his name and address, were registered as brand as on the 15th May 2017 under the Copyright Act, 1957 or under any Law for the time being in force in any other country This information is also very important considering the meaning of the term 'registered brand name' given und
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ionally use their said name for any purpose. It seems impossible that the applicant would allow any other person to use his name/and address in the said manner. It appears to be an absurd proposal. Therefore it appears that the applicant is not in a position to fulfill the condition of the subject notification to be eligible for the exemption from the payment of GST. 3. Since the applicant has not provided the vital information as discussed above in paragraph 2 necessary to decide the issue, it is prayed that the application may be rejected ab initio in terms of Section 98(2) of the Central Goods and Services Act, 2017. 4. With reference to said application of the applicant following further submissions are made as preliminary submissions and detailed response would be submitted at later stage :- i) The main issue involved in this application is that whether furnishing details of the applicant i.e. name and registered address, in capacity as the manufacturer or in capacity of marketing
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t 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 support the applicant has relied upon the decisions of Hon'ble Supreme Court in case of Tarai Foods Limited V Meerut-II [2006 (198) E.LT. 323 (S.C.)], and that delivered in of CCEx. V Pepsi Foods Limited [2015(322) ELT A 325 (SC)] and also certain decisions of Hon'ble High Court of Madras and CESTAT. iv) In this regard, the applicant has totally ignored the judgment of the same Court which was delivered on 12-4-2005 in case of Commissioner of Central Excise, Trichy Vis M/s. Grasim Industries (2005 (183) E.L.T. 123 (S.C.). In the Hon'ble Supreme Court has examined the very same issue whether merely furnishing name of any concern on the package of the goods would amount to affix brand name and held that even the name of some other company, if it is used for the purposes of indi
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e Hon'ble Supreme Court. Being the facts ratio of the judgment delivered by the three Member bench of Hon'ble Supreme Court in case of Commissioner of Central Excise, Trichy v/s M/s. Grasim Industries (2005 (183) E.L.T. 123 (SC,) would hue precedence value over that delivered by two member Bench and those delivered by the lower Courts. vi) From the information given by the applicant in application and annexures to it, there appears to be no statutory requirement to disclose the details of the person who is marketing the goods on the packages. The only requirement is relating to furnish details 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
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s not provided the vital information as discussed above in paragraph 2 necessary to decide the issue, it is prayed that the application may be rejected at this stage only. ii) considering the facts discussed in foregoing paragraphs, the questions framed by the applicant may be decided ruling that the use of name by the applicant on packages would amount to use of brand name and therefore he would not be entitled for any exemption under the said exemption notifications. 04. HEARING The case was taken up for preliminary hearing on dt.31.01.2018 when Sh. Anay Banhatti, Advocate, alongwith Sh. Supreme Kothari, Chartered Accountant and Sh. Manoj Jaipatkar, Indirect Tax Manager attended and orally argued for admission of their Advance Ruling application. Sh. S. S. Bhide, Superintendent, Mumbai-East attended and made oral submission with respect to admission claim of the applicant. In the final hearing on dt.27.02.2018, all the aforementioned attended alongwith Sh. Gopal Nayak, Sr. V.P and re
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d 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 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
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ing statement that the said term is merely a quality indicator and that 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. In a later submission, the applicant has informed thus 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. Since it is a future transaction, we proceed with the above submission that – The goods would be packed in a unit container. None of the registered trademarks of the applicant would appear on the packages in respect of both the Streams. Common/ generic terms viz. 'Value', 'Choice' and 'Superior' f
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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 Limited , either as a manufacturer or as the one undertaking marketing, would not amount to bearing a brand name as such declar
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red 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 under the Copyright Act, 1957(14 of 1957); (C) a brand registered as on or after the 15th May 2017 under any law for the time being in force in any other country ANNEXURE 1 For foregoing an actionable claim or enforceable right on a brand name, – (a) the person undertaking packing of such goods in unit containers which bears a brand name shall file an affidavit to that effect with the Jurisdictional commissioner of Central tax that he is voluntarily foregoing his actionable claim or enforceable right on such brand name as defined in Explanation (ii)(a); and (b) the person undertaking packing of such goods in unit containers which bear a brand name shall, on each such unit containers, clearly print in indelible ink, both in English and the local language, that in respect of the brand name as defined in
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ntarily 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 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. We see that the above definition of 'brand name' says that the name or mark may indicate the identity of the person. The definition of trade description under the Trade Marks Act, 1999 also means any description as to the identity of the manufacturer or of the person providing the services as can be seen
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goods are composed: or (viii) as to any goods being the subject of an existing patent, privilege or copyright, and includes (a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters : (b) the description as to any imported goods contained in any bill of entry or shipping bills: (c) any other description which is likely to be misunderstood or mistaken for all or any of the said matters: In the present case, we find that there is mention of the name Aditya Birla Retail Limited . It is indicative of the situation that the product belongs to Aditya Birla Retail Limited which is a big name in the business world, world over. The website of the company says thus – Aditya Birla Group A US $43 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
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forms its solid foundation in a bolder and more forceful global version. The crisscrossing sunbeams connote the vibrant internal and external movement of energy. Like a prism, it refracts the multi-dimensional facets of our Group. A deep sense of simplicity, solidity, permanence. Vim and vigour. Hope. Our timeless values. Our boundless optimism. And all these culminate in the dramatic ascension of our Group, in perpetuity, reaching higher peaks. To sum up our new mark embeds a sense of pride, unity and belonging in all of us. In our Chairman's words again: I look upon it as our best calling card as we move onto a brave new horizon. big on growth, based on strong fundamentals, and as One ABG family . About us – Aditya Birla Retail Limited Aditya Birla Retail Limited (ABRL) is the retail arm of Aditya Birla Group, a $43 billion corporation. The company ventured into food and grocery retail sectors in 2007 with the acquisition of Trinethru Super Retail and subsequently expanded its pr
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of whom enjoy a host of customised offers and great savings. ………………………………….. Supermarkets More Quality 1st Supermarkets – Conveniently located in neighborhoods. More Quality 1st Supermarkets cater to the daily, weekly and monthly shopping needs of consumers. The product offerings include a wide range of fresh fruits and vegetables, groceries, 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 deli
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strives to be a notch above the industry standard This is achieved with its mobile identifier system. More Choice and more Value products help you meet the daily needs of your family with a wide selection of everyday essentials across categories like pulses tea, home essentials and napkins, which offer incredible value and savings. Now that's a win-win situation that's too good to pass up! As can be seen the name Aditya Birla is a benchmark in itself and is associated with a certain trust and quality. Now, we see the definition of 'brand name' includes a name or a mark. This concept of 'mark' stems from the Trade Marks Act, 1999 where we have the following definition – (m) mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof: It can be seen that a 'mark' includes a 'name'. Further, it also includes a combination of colours. In
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. On this issue of 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 br
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notwithstanding that there is no physical inscription of the brand or trade name on the good itself Further, a specific, dedicated and exclusive outlet from which a good is sold is often the most crucial and conclusive factor to hold a good as branded. The decision referred to above only made a limited point that invoices alone cannot be the sole basis of construing whether a good is a branded good or not; it does not hold that a specified good itself must be stamped with a brand name. It is, therefore, permissible to look into the environment of the good. However, like in the case of Kirloskar generators (Superex Industries [CCE v. Superex Industries, (2005) 4 SCC 207]), invoices bearing brand name could not be the sole basis of construing whether goods are branded or not. That decision would depend on the facts and circumstances of the case. There can be no precise formula for such a determination: in some cases certain factors may carry more weight than in other situations. However,
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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 market. It does nor carve out an exception for goods manufactured for captive consumption. The framers mean/ what they provided. The exemption was to be available only 10 goods which did not bear
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ustomer. This is clear from the face that the elastics on which brand/trade name of is affixed will not and cannot be used by any person other than the person using that brand/trade name, As set out hereinabove once a brand/trade name is used in the course of trade of the manufacturer, who is indicating a connection between the 'goods' manufactured by him and the person using the brand/trade name, the exemption is lost. In any case it cannot be forgotten that the customer wants his brand/trade name affixed on the product not for own knowledge or interest the elastic supplied by (he appellants is becoming part and parcel of the undergarment. The customer is getting the brand/trade name affixed because he wants the ultimate customer to know that there is a connection between the product and him. 14. We feet that to hold from the above passages that every good must be physically stamped with a brand or trade name to be considered a branded good in terms of the notification, and th
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he 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 that the term specified goods is used without any caveats and hence rejected the contention that some consideration should be given to the fact that P1 was used only as an input in the making of the final product of P2. It is in this background that this Court in Kohinoor Elastic case [Kohinoor Elastics (P) Ltd. V. CCE, (2005) 7 SCC 528] observed that the requirement of the notifications must be adhered to strictly and cannot be diluted by substituting the term specified goods with the nature of goods or the manner of disposal. In case the specified good clearly exhibits a brand name of another not cover
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on a good. The test of whether the good is branded or unbranded, must not be the physical presence of the brand name on the good, but whether it, as Explanation IX reads, 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 the person . Therefore, whether the brand name appears in entirety or in parts or does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. 17. Highlighting this principle, this Court in CCE v. Rukmani 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 n
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and make them eligible to the benefit of the notification. 18. Similarly in CCE v. Mahaan Dairies [(2004) 11 SCC 798], it was noted as follows: (SCC p. 800, paras 6 & 8) 6. We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders [(2004) 11 SCC 801] wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification. *** 8. It is settled law that in order to claim benefit of a notification, a parry must strictly comply with the terms of the notification. If on wording of the notification the
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otato chips, chocolates, biscuits, wafers, powders and other such goods often sold from various locations. 20. In case of goods sold from exclusive single brand retail outlets or restaurants or stores, the fact that a good is sold from such a store ought to be relevant fact in construing if the good is its branded good or not. In the case of such goods, perhaps a rebuttable 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
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ng the mark. We have seen here that the impugned goods are available only at the More Stores. We have seen from the website of the applicant that the applicant ventured into food and grocery retail sectors under the brand 'more' with two formats – Supermarkets and Hypermarkets. In CCE v. Stangen Immuno Diagnostics, (2015) 11 SCC 761 : 2015, it has been observed that – The central idea contained in the definition is that the mark is used with the purpose to show connection of the said goods with some person who is using the name or mark. Therefore, in order to qualify as brand name or trade name it has to be established that such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer. In the present case, the applicant also has a family of customers purchasing from the More Stores and associating the Brand with some quality standards. Thus, the customers are aware of the More brand as
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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
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upreme Court has observed that whether the brand name appears or does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. And we have shown above that people are aware of the fact that More brand products are available at the More Stores alongwith the products of other manufacturers or brands- There is an identity established with the products which are available at no place other than the More Stores. We have come to the conclusion which is fortified by decisions of the Hon. Courts that the products supplied under Stream 1 and Stream 2 would amount to supply under a brand name on the basis of all the above factors and the attending circumstances. Stream 3 The question in respect of Stream 3 needs details and facts as are submitted in respect of the Streams 1 and 2. The question cannot be raised in isolation and with an incomplete
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entioning 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 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- Adity
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