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TAXABILITY OF GOODS UNDER BRAND NAME AFFIRMED BY (AAAR)

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TAXABILITY OF GOODS UNDER BRAND NAME AFFIRMED BY (AAAR)
By: Dr. Sanjiv Agarwal
October 9, 2018
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[In Re: Aditya Birla Retail Ltd.2018 (8) TMI 1072 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA ], Appellate Authority for Advance Ruling vide its order dated 07.08.2018 affirmed the advance ruling pronounced by Authority for Advance Ruling to the effect that goods sold under trade name / brand name are liable to levy of GST.

Aditya Birla Retail Limited ('the Appellant') is inter alia engaged in the processing and/or trading of a wide range of cereals, pulses and flour classifiable under Chapter 10 of the First schedule to the Customs Tariff Act, 1975. The subject goods are sold by the Appellant at its supermarket and hypermarket format stores, namely 'More Stores', located in various states.

In the instant case, appellant sells the subject goods under the following brand names, 'More for you', 'More Selecta' and 'More value' (i.e., 'More trademarks'), which are registered trademarks (in the name of the Appellant) under the Trademarks Act, 1999. 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 Appellant for specified purposes. The subject goods are presently sold from its 'More Stores'. The brand name 'More', pertaining to such 'More Stores', is also registered under the Trademarks Act. However, from the 'More' stores, several categories of products, manufactured by different companies, are also sold. Such products may or may not be bearing a brand name.

The applicant proposed to revise its packaging scheme of goods and the manner of sale  to exclude from the packages the registered trademarks, namely 'More trademarks' and the 'Aditya Birla' logo. The proposed packaging of subject goods under two streams would accordingly bear the following details:

Subject goods sold under Stream 1: The packaging would bear only details of the Appellant as the manufacturer and the customer care related details as mandated under the Subject Statutory Provisions.

Subject goods sold under Stream 2: The packaging would bear details of the manufacturer, and, the customer care related details, as mandated under the Subject Statutory Provisions, and would have a declaration- 'Marketed by Aditya Birla Retail Limited'.

It sought advance ruling on as to whether goods sold under stream 1 can be considered as ‘not having a brand name’ and hence exempt from GST as per Notification No. 2/2017-CT(Rate) dated 28.06.2017 and whether goods sold under stream 2 can be considered as ‘not having a brand name’. The AAR answered both the questions in negative.  Being aggrieved, the matter was appealed and AAAR affirmed the ruling. It observed that presently goods are being sold under brand name ‘MORE’ with logo ‘Aditya Birla Retail’ in exclusive ‘MORE Stores’. Customers not only identify goods with aforesaid brand name or logo but also with More stores owned by Aitya Birla Group of Companies. Thus, proposed change of removing brand name ‘MORE’ and logo ‘Aditya Birla Retail’ and replacing it with name ‘Aditya Birla Retails Ltd.’ is not going to make any difference so far as establishing connection of goods with manufactures. Goods  would continue to be sold in exclusive stores with packages having same style, color and nature of packing. Environment of sale of goods would also be same as website of appellant would continue to bear MORE Stores name and so would be Billing receipts. Further, generic terms like ‘Choice’, ‘Superior’ etc. showing different quality of goods would also continue to be displayed as being done earlier. Appellant’s assertion of taking a liberal view of exemption notification was not acceptable.

The AAAR thus, sustained the ruling with additional ruling that  the use or words 'Value', 'Choice' or ' Superior' on the proposed packing, without altering the surrounding environment to take advantage of brand 'MORE', would be construed as 'brand name' for the purpose of Exemption Notification.

 

By: Dr. Sanjiv Agarwal - October 9, 2018

 

 

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