In Re: M/s. Aditya Birla Retail Ltd.
GST
2018 (5) TMI 700 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (12) G. S. T. L. 403 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – AAR
Dated:- 23-3-2018
GST-ARA-13/2017/B-16
GST
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 re
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;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 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
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tively to as 'More trademarks'), which are registered trademarks (in the name of the Applicant) under the Trade Marks Act, 1999 ('the Trade Marks Act'). Further, the packaging of the subject goods also bears the 'Aditya Birla ' logo which 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
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ores,
The list of subject goods which are sold under Stream 2 is enclosed as Exhibit C.
The package of subject goods sold by the Applicant under Stream 2 inter alia bears the name of the manufacturers the declaration 'Marketed By – Adirya Birla Retail Limited' and 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 be
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2017 (CGST Rate Notification'), and, corresponding entries under Schedule 1 to Notification No. 1/2017-lntergrated (Serial no. 46, 48, 51, 53) tax, dated 28th June 2017 ('IGST Rate Notification') and under Schedule 1 to Notification No. 1/2017-State tax, dated 29th June 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, th
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(1) No person shall manufacture, 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 be regulations…'
Food Safety and Standards (Packaging and Labelling) 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 packa
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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 RES
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al Tax (Rate)
New Delhi, the 28th June, 2017
G.S.R. 674 (E).- In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts intra-State 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 av
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ity 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 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 i
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(a) above is satisfied.
1.6. As regards condition (b), as is evident from a plain reading of the provisions, the requirement of goods being 'put up in unit container and, 'bearing a registered brand name' or 'brand name on which an actionable claim or enforceable right in a court of law is available' would have to be cumulatively satisfied so as to exclude the corresponding goods from the purview of the exemption.
1.7. Accordingly, where any one of the stated conditions 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 f
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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 actionable claim or enforceable right on such brand name, and is claiming exemption. However, under the present 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 n
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re mention of the name of the manufacturer would not constitute a brand name as the customer would obviously not identify the goods with the name of the manufacturer. The above can be further explained by way of the following illustrations:
(i) The products 'noodles' is manufactured and sold by Nestle India Limited, under the brand name 'Maggie'. It is well known that the customers identify the brand name 'Maggie 'with the product noodles and not the name of the Company, 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
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de the name of the manufacturer printed on the package in terms of a legal requirement. The relevant entry to the First Schedule to the Central Excise Tariff Act, 1985, which was under consideration is as follows:
Heading No.
Sub-heading No.
Description of goods
Rate of duty
(1)
(2)
(3)
(4)
20.01
Preparations of vegetables, fruit, nuts or other parts of plants including jams, fruit jelles, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetables juices, whether or not containing 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)
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lude the name of the manufacturer which was printed on the products.
– In the above context, the Hon'ble Supreme Court on the issue as to whether the name of the manufacture can be considered to be a 'brand name' held as follows:
“Under 'he Standard Weights and Measures (Packers Commodities) Act, 1977 every packet is required hear thereon or on label squarely affixed thereto a 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
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ote of the definition provided to the phrase 'brand name' (which is similar to meaning provided to the phrase under the Exemption Notifications), and the decision in the case of Tarai Foods (supra), upheld the decision of the Hon'ble Tribunal in the assessee's own case, CCEx vs Pepsi Foods Ltd., [2003 (156) EET. 1013 (Tri. – Del.)]' and in the case of Nirula and company Pvt. Ltd. vs CCEx [2005 (186) E.L.T. 412 (Tri. – Del.)], stating that mere printing of the name of the company on unit container does not make the package branded, unless brand itself is printed specifically.
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 actu
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xamining 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. I
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8/2011-CV dated 21st June 2011, which was issued as regards levy of Excise duty on branded readymade garments, (where the definition of 'brand name' was similar to the definition applicable in the present case), it was clarified therein that the mere mention of the name of the tailor or manufacturer would not render the product as branded product.
1.15. Further, in terms of the generally followed practice in the industry wherein the goods are manufactured and packed by third party / job worker, the name and registered address of the manufacturer / packer is required to be 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 manufact
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reme 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 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. –
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a 'brand name'. 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.
Question 111: (a) Whether the declarations made on the package, by inter alia using common/ generic terms viz. 'Value'. 'Choice' and 'Superior', 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 Can be construed to be a 'brand 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 p
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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 the right as proprietor to use the mark'. In view of the same, a name, which merely indicates quality parameters of the goods, should also not be construed to be a 'brand name'.
1.24. Accordingly, the declarations 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 specifica
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ject goods proposed to be sold by the Applicant under Stream 2, where the package of the Subject goods would have a declaration mentioning the name and registered address of the manufacturer, in terms of 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.
(iii) The declarations made on the package, by inter alia using common/ generic terms viz, 'Value Choice' and 'Superior' for the sole purpose of indicating 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
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63010
72
5.
Brown Rice
Stream 1
10062000
70
6.
Barley
Stream 1 and 2
10082910 10082110
67
7.
Boiled Rice
Stream 1 and 2
10059000
70
8.
Brown Rice
Stream 1 and 2
10082930 10082130
70
9.
Maze
Stream 1 and 2
10063090
69
10.
Rice-Others
Stream 1 and 2
10019910
70
Submission dt.27.02.2018
2. Summary or submissions-
In the facts and circumstances of the present case. the name of the Applicant does not constitute 'brand name' defined in the Exemption Notifications-
* In terms of the definition of the term 'brand name', it can be a name, mark, etc. which necessarily establishes '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.' 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, manu
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d name of the Applicant (i.e. 'More' trademarks), it cannot be construed to be branded.
* There are several practical illustrations which would establish that a product is recognised in the market through its brand name and may not be directly associated or Identified with its manufacturer/brand owner. An illustrative list in this regard is enclosed as Annexure H. This supports the case 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
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ing the manufacturer's name would amount affixing brand name is accepted. then all the goods containing manufacturer's name would be branded goods which is highly illogical. In fact in respect of the packaged goods, there are statutory requirements that the manufacturer's packer's name and address should be indicated on the package of the goods under the standards of Weights & Measures Act, 1976 and the rules made thereunder'
(b) Construing name of the manufacturer as a brand name would render certain parts of the Exemption Notifications redundant-
* In terms of the Exemption Notifications, exemption is admissible for goods other than those put up in unit container and bearing a brand name, Further the term 'unit container' is defined to mean 'a package, whether large or small (for 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
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ct 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
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ouse mark” and “Product mark” or “Brand name” has been clearly brought out by way of reference to the decision in Astra Pharmaceutical Pvt. Ltd. (supra). It is stated therein that “House mark” is used on all the product of the manufacturer and that it is usually a device or a form of emblem of words or both. It was also pointed out that for each product a separate mark known as a “Product mark” or “brand name” is used which is invariable a word or combination of word and letter or numeral by which the product is identified and asked for. In the book of “Law of Trade Marks” by K.C. Kaliasam and Ramu Vedaraman the distinction between “Product Mark” and 'House mark' has been beautifully delineated, which is as under: “It is possible that the proprietor may use serval trade marks in respect of his goods (known as Product mark), besides 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 i
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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 name is used for the purpose of indicating 'a connection in the course of trade between such specified goods and some person using such name. Therefore, name of a company cannot be a brand name-
* T
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rtificate of the Trade Mark Registery states the brand name as 'Nirula's. Since the packages in question do not bear this brand name, there could be no doubt about identify the goods, that they do not bear a brand name'
Question 3
(a) Section 9 of the Trade Marks Act lays down that a trade mark which serves in trade to inter alia designate quality of the goods shall not be registered
(b) Further, generic terms, which only indicate quality of the product and are not, in any way, used in relation to specified goods or for indicating a relationship between the product and the person, cannot fall within the ambit of the term 'brand name'
(c) In terms of the decision of the Hon'ble Supreme Court in the case of Tarai Foods (Supra), 'brand name connotes such a mark, symbol, design or name which is unique to the particular manufacturer when used on particular product would establish a connection between the product and manufacturer. Therefore, generic words cannot be co
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egistered 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/actionable claim available in respect of its name, which apparently would be mentioned in the proposed packaging. If such rights are not forgone, exemption would be inadmissible.
On a plain reading of GST Exemption Notifications, it is evident that bearing a brand name on the unit container 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. As name of the person cannot be considered to be a brand name, such subsequent determination would not arise.
In terms of the decision of the H
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d with whether use of the words 'A Subsidiary of Grasim Industries Lld', by the manufacturer, can be construed to be a 'brand name'. To this extent, both the said decisions operate in different domains. It is a settled principle of law that a judicial decision is an authority for what it actually decides and not for what can be read into it by implication or by assigning an assumed intention to the judges-
* Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111- 'A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union 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 Incom
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ext of a Central Excise Notification. For this reason, the Hon'ble Court, in its wisdom, cautioned that the interpretation adopted by it may not be applied as a thumb rule in all situations. The Hon'ble Court went on to state that mere mentioning of the name of the marketer may not be sufficient to render the product branded- 'Of course this being a Notification under the Excise Act, the connection must be such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can he laid down however it is possible that words which merely indicate the party who is marketing the produce may not be sufficient. As we are not dealing such a case we do not express any opinion on this aspect. 'TO this extent the said decision is not applicable for determining Question 2.
* Reliance in this regard is also placed on the decision in the case of CCEx. vs Paul Aquomin & Foods (P) Ltd., [2009 (244) E.L.T. 278 (Tri. – Kolkata)],
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licant confirms that it would not be reflecting the said disclosures in the proposed packages, in terms of enclosed proposed packaging, which have also been separately filed by the Applicant vide its letter dated 27th February 2018.”
05. CONTENTION – AS PER THE CONCERNED OFFICER
The submission, as reproduced verbatim, could be seen thus-
“2. It is submitted at the outset that the applicant ought 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 resp
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ations.
iv) As detailed in Annexure-I to the Notification No. 2/2017 CT (rate) dated 28/6/2017 as amended, for foregoing an actionable claim or enforceable right on brand name the person undertaking packing of such goods which bears a brand name is required (i) to file an affidavit before the jurisdictional Commissioner that he is voluntarily foregoing his actionable claim or enforceable right on brand name (ii) and on each such unit container he has to declare these facts i.e. foregoing his actionable claim or enforceable right on brand name. On this back ground the applicant ought to have clarified whether he intends to forego such rights over the details proposed to be furnished on the packages i.e. his name/address. Though it has not been clearly mentioned yet it appears that name of the applicant is 'Aditya Birla Retail Limited'. Foregoing, any actionable claim on the said name of the applicant would mean that they allow any other person to unconditionally use their
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he 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 ment
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onnection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood 'A copy of said judgment dated 12-4-2005 delivered in case of Commissioner of Central Excise, Trichy V/s M/S Grasim Industries (2005 (183) E.L.T.123 (S.C.), is enclosed as Annexure 'A to these submissions.
v) The said judgment of dated 12-4-2005 has been delivered by the three member bench of the Hon'ble Supreme Court where as judgment of S.C. in case of Tarai Foods Limited V Meerut-II relied upon by the applicant, has been delivered by the two member Bench. As discussed by the applicant the decision of Hon'ble Supreme Court in case of CCEx. V Pepsi Foods Limited is based on the said decision of Supreme Court in case of Tarai Foods Limited V Meerut-II. The judgment in said case of CCEx. V Pepsi Foods Limited has also been delivered by the two members Bench of the Hon
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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 applicant would amount to use of brand name and in turn he would not be entitled for the exemption under the Exemption Notifications as being claimed.
PRAYER
6. It is prayed that,
i) Since the applicant has
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reiterated the contention as made in the written submission. None was present on behalf of the concerned jurisdictional authority. However, a written submission has been tendered which has been reproduced above.
05. OBSERVATIONS
We have gone through the facts of the case. The issue before us is a future transaction of supply of goods by the applicant. The mechanism of supply as explained in the application is thus –
STREAM 1
* 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 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.
STREAM 2
* Subject goods are pr
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e 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 Retail Limited'
* Under both the streams, for some of the subject goods, the package would also bear a certain declaration for the sole purpose indicating the quality variant of the product so as to enable the customers to identify and buy products based on there requirements, budget and preferences. In this regard, the Applicant intends to make the following indicative declarations on the product package by using common/ generic words-
* The term 'Value' with a corresponding statement that the said term is merely a quality indicator and that Indicates that the product is of a standard
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s.
* Common/ generic terms viz. 'Value', 'Choice' and 'Superior' for the sole purpose of indicating the quality of the product/ variant of the product would be used.
* In respect of Stream 1 [procuring unprocessed food products and undertaking processing (involving sorting, quality assessment, grading etc.) and packing in own units], the package would have the details of “Manufactured and packed by Aditya Birla Retail Limited”. It would also have the details of “Pkg. Material Mfg. by XXX”
* In respect of Stream 2 [procuring goods in processed and packed form in terms of the quality standards being sold], the package would have the details of “Manufactured and packed by XXX” the declaration 'Marketed By – Aditya Birla Retail Limited also have the details 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
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either as a manufacturer or as the one undertaking marketing, would not amount to bearing a brand name as such declarations are in keeping with the provisions of some statutes. Hence, the claim that the concerned entries in the Schedule of exempted goods would be applicable to the supplies made by the applicant. To ascertain the correctness of the claims, we would have a look as to what is meant by a 'brand name'. The very Notification No.2/2017-Integrated / Central / State Tax (Rate) dated 28th June 2017 (as amended from time to time) on which reliance has been placed has details thus –
* Explanation. –
(ii) (a) The phrase “brand name” means brand name or trade name, that is to say, 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 w
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unit containers, clearly print in indelible ink, both in English and the local language, that in respect of the brand name as defined in Explanation (ii)(a) printed on the unit containers he has foregone his actionable claim or enforceable right voluntarily.
Provided that, if the person having an actionable claim or enforceable right on a brand name and the person undertaking packing of such 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
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rade 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 below –
“(za) “trade description” means any description, statement or other indication direct or indirect
(i) as to the number, quantity, measure, gauge or weight of any goods or
(ii) as to the standard of quality of any goods or services according to a classification commonly used or recogntsed in the trade: or
(iii) as to fitness for the purpose, strength, performances or behaviour of any goods, being “drug” as defined in the Drugs and Cosmetics Act, 1940 or “food” as defined in the Prevention of food Adulteration act, 1954; or
(iv) as to the place or country in which or the time at which any goods or services were made, produced or provided as the case may be : or
(v) as to the name and address or other indication of the identity of the manufacturer or of the person providing the services or of the pers
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illion 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
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d (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 presence across the country under the brand 'more' with two formats – Supermarkets and Hypermarkets.
In keeping with our motto 'Quality 1st ABRL takes pride in being the first ever Indian food and grocery retailer to receive the FSMS (Food Safety Management System) certification. The company received this certification for ensuring that the manufacturing, storage, distribution and sale of food adheres to the highest quality standards. ABRL 's Re-Processing Centres are also FSMS certified. The Aditya Birla Science and Technology Centre in Taloja drives our quest for world-class quality through extensive research and development across food and non-food categories.
Through Clubmore and its comprehensive range of brands, including power brands – VOW, Feas
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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 categories.
Clubmore
With the strength of around 20 million members, Clubmore has gone mobile. It leverages the power of marketing analytics to deliver meaningful and tailor-made offers to individual custome
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ng 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 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. The Hon. Supreme Court decision in CCE v. Grasim Industries Ltd. [CCE v. Grasim Industries Ltd., (2005) 4 SCC 194] has observed that the words 'any writing' in the definition of 'brand name' are wide enough to include the name of a company. Besides the goods under both the Streams would be available in the More Stores. It was confirmed during the hearing that these goods are not available in any other stores except the More Stores. It has been argued that along with these products, the More Stores also h
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t 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 products, gall. pepper, sweets, gaseous products, perfumes, deodorants, etc., to name u few, are either liquids, gases or amorphous/brittle solids, making it Impossible for the goods to be affixed with a brand name. In some situations, such an affixation may be impossible, in which case, it would be permissible for the specified good to continue being a branded good, as long as its environment conveys that it is branded. By environment we mean packaging and wrapping of the good, accessories it is served with, uniform of vendors, invoices, menu cards, hoardings and display boards of the outlet, fur
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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, in most circumstances, an exclusive branded outlet from which the good is sold, would be a crucial factor in determining the question.
13. The learned counsel strongly relied on another decision of this Court in Kohinoor Elastics (P) Ltd. v. CCE [Kohinoor Elastics (P) Ltd. v. CCE, (2005) 7 SCC 528] for the proposition that only the “specified good” in question must be scrutinised and the expression cannot be expanded to mean “specified outlets” or other surrounding circumstances. To bring home his point. reliance was placed on the following paragraphs from the said decision: (SCC pp. 530-33, paras 5 & 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
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et. 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 a brand/trade name of another. The reason for (his is obvious. If use of brand/trade names were to be permitted on goods manufactured as per the orders of customers or which are to be captively consumed then manufacturers, who are otherwise nor entitled to exemption. would gel their goods or some inputs manufactured on job-work basis or through some small party. freely use their brand/trade name on the goods and avail of the exemption. is to foreclose such a thing that Clause 4 provides, in unambiguous terms, that the exemption is lost if the 'goods' bear a brand/trade name of another.
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7. Now in this case there is no dispute on facts. The 'course of trade' of the appellants is making elastics for specified customers. It is an admitted position that the appellants are affixi
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duct 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 that, one is forbidden to look beyond the specified good into the surrounding environment of the good in construing If it is a branded good or not, would be a complete misunderstanding of the above 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
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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 covered by the notification, it would squarely fall within the confines of Para 4 of the notification; looking beyond the specified good to consider whether it is an input or not is not necessary in case of a conspicuous brand name. However, to apply this principle to the scenario of a specified good that does not contain a brand name al all would be equivalent to fitting a square peg in a round hole. If a final product is marked or stamped with a brand name, it is clearly a branded good; to stretch this principle to imply that one not marked by any brand is an unbranded good, is untenable, [n case a scrutiny of the good itself fails to reveal a brand name then the search must not end there; one ought to look into the surrounding circumstances of the good to decipher, if it is in
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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, admitted
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y to claim the benefit of the notification.
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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 benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by in Rukmani Pakkwell Traders v. CCE [(1999) 109 ELT 204 (CEGT)] . We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. is accordingly set aside.”
19. As aforesaid, once it is established that a specified good is a branded good, whether it is sold without any trade name on it, or by another manufacturer. it does not cease to be u branded good of the first manufacturer. Therefore, soft drinks of a certain company do not cease to be manufactured branded goods of that company simply because t
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thout 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 limited to this notification and not supplanted to other laws with similar subject-mutter pertaining to trade names and brand names”
As observed in the above case, the observation as to whether the brand
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rk, 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 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 sudden, in view of the provisions of the GST Act, to discontinue the earlier practice of mentioning the Aditya Birla logo or the More brand would not mean that the customers would have any difficulty in associating or identifying the products with the More brand. Therefore, the entries which are claimed applicable would not be applicable as –
a) Indisputably, the applicant is supplying the goods in a unit container.
b) Supply of the goods at the “More Stores” would amount to the goods being supplied by a particular supplier and under a brand name.
In view of above, we hold that when the position
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rson.
(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 being in force in any other country
We find that the applicant has argued that the mention of the name of the applicant is with regard to the mandatory requirements of some other statutes and therefore the goods being supplied by the applicant under Stream 1 and 2 would not be considered as branded. However it is clearly visible that the applicant though is proposing to make changes as per the Stream 1 and 2 mentioned above, it is equally clear that the goods are being supplied through the “More Stores” which is a registered brand as on the 15th May 2017 irrespective of whether or not the brand wo
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nd 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 set of facts. Further, from the sample packaging pictures submitted, the question is found to be linked to the Streams 1 and 2. The words 'Value', 'Choice' and 'Superior' would be in addition to the facts as found in the Streams 1 and 2. In view thereof, having answered the questions in respect of the Streams 1 and 2, there arises no occasion to visit the question in respect of Stream 3. The applicant can refer to the answers in respect of the Streams I and 2.
06. In view of the extensive deliberations 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
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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?
A.2 Answered in the negative.
Q.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 based on their requirements, budget and preferences can be construed to be a 'brand name' for the purpose of the Exemption Notifications?
A.3 The question cannot be raised in isolation, Refer to the
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