TMI Blog2018 (5) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... imited' can be considered as 'not bearing a brand name', and, accordingly eligible for exemption in terms of relevant entries to the Exemption Notifications? 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? Held 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 - 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 observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration mentioning the name and registered address of the Applicant as the manufacturer, as per the statutory requirement under Subject Statutory Provisions, can be considered as 'not bearing a brand name', and, accordingly eligible for exemption from GST in terms of relevant entries to Notification No.2/2017 Central tax (Rate) dated 28th June 2017 ('CGST Notification'), and, the corresponding entries under Notification No.2T2017-lntergrated tax (Rate) dated 28th June 2017 ( IGST Notification') and Notification No.2/2017-State Tax (Rate) dated 29th June 2017) [collectively referred to as 'the Exemption Notifications']? 2. Whether the subject goods proposed to be sold under Stream 2 (refer Annexure I), where the package of the subject goods would have a declaration mentioning the name and registered address of the manufacturer as per the statutory requirement under the Subject Statutory Provisions as also the declaration Marketed by-Aditya Birla Retail Limited' can be considered as 'not bearing a brand name', and, accordingly eligible for exemption in terms of relevant entries to the Exemption Notifications? 3. Whether the declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the list of processing units of the Applicant located across India, are collectively enclosed as Exhibit A. The package of subject goods sold by the Applicant under Stream 1 inter alia bears the name of the Applicant as being the manufacturer and the registered trademarks viz. 'More trademarks' and the Aditya Birla logo. A sample package thereof is enclosed as Exhibit B. (ii) Stream 2- Subject goods are procured in processed and packed form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017-lntergrated (Serial no. 46, 48, 51, 53) tax, dated 28 th June 2017 ( IGST Rate Notification') and under Schedule 1 to Notification No. 1/2017-State tax, dated 29 th 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, 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 dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 their 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 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able [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 or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package. (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 wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontainers 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 that under the proposed transaction. the registered trademarks, namely 'More trademarks' and the 'Aditya Birla' logo would not be mentioned on the packaging of the subject goods marketed under both the transaction streams, the packages cannot be said to be bearing any 'registered brand name 1.10. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained 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 '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 bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing bore all Other details except the words Inland Valley , They classified their first packing under sub-heading No. 2001.10 and cleared the same from the factory by paying duty at the rate of 8% as prescribed in that sub-heading. But the second packing had been classified by them under sub-heading 2001.90 and cleared at nil rate of duty. - The definition of 'brand name considered in this case was similar to the definition as stated in the Exemption Notifications. - The department had contended that the definition of 'brand name' would include 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, 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 note of the definition of brand name' (which is similar to the meaning provided to the phrase under the Exemption Notifications) held that the superscription 'manufactured and packed by SVS' Sons' cannot be considered as a brand name or a trade name. (ii) The Hon'ble Tribunal in the case of Commissioner of Central Excise v. Synotex Industries, [2012 (278) ELT 90 (Tri-Kolkata)], While examining the scope of the definition of 'brand name' (which definition was similar to the definition adopted in the Exemption Notifications) held that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 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 Notifications, as specifically highlighted in Exhibit G to this Application. Question II - Where the packaging of subject goods menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subject goods would have a declaration mentioning the name and registered address of the Applicant as the manufacturer, in terms of the Subject Statutory Provisions, can be considered as not bearing a brand name, and, accordingly eligible for exemption from GST in terms of relevant entries of the Exemption Notifications. (ii) The subject 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification no. 02/2017-Central Tax (Rate) 1. Bajra Stream 1 10082120 10082920 72 2. Basmati rice Stream 1 10039000 70 3. Jowar Stream 1 10063020 72 4. Ragi Stream 1 10063010 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its products are recognised in the market are proposed to be removed from its packaging, and, its name, which would be mentioned in the proposed packages, is not identified with its product. Further, there would also be such illustrations where the product is identified with the name of the company. An illustrative list in this regard is enclosed as Annexure I. As evident, this strictly holds true in case where the product is eponymous to the manufacturer, which is not the case of the Applicant. Other key submissions Question Submissions Question 1 (a) It is a settled law, inter alia in terms of the following decisions that mentioning of the name of the manufacturer on the package of a product, in terms of statutory requirements, cannot render the product branded- Tarai Foods Limited Vs CCEx. Meerut-II 2006 (198) 323 (S.C.)- 'Under the Standard Weights and Measures (Packets Commodities) Act. 1977 every packet is required to bear thereon or on a label squarely affixed thereto a definite, Plain and conspicuous declaration as to, Inter alia. the name and address of the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer is a brand name in itself, then every food product which is sold in packed form would be considered as branded. To this extent, the requirement that the product should bear a brand name would be rendered redundant, considering that a product sold in a unit container (and therefore being governed by FSSA and FSSA Regulations) would necessarily disclose the name of the manufacturer in every case. It is a settled law that the courts should always presume that the legislature inserted every part in a statute/ notification for a purpose and the legislature's intention is that every part of a statute should have effect and that a construction which results in redundancy of some part of a statute, must not be accepted. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Bansal Wire Industries Ltd vs State or U.P. [2011 (269) EL.T. 145 (S.C.)] wherein the Hon'ble Court laid down that it is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of 'he cardinal principles of interpretation of any stance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 monograph and the medicine was established. In the case of appellant it was only a monograph to identify the manufacturer' CCEx. Vs West Bengal Chemical Industries Limited, [2006 (200) E.L.T. 68 (Tri. - Kolkata)]- 'The Commissioner (Appeals) has also observed in the impugned Order that no consumer asks for Mother Dairy' when he or she wants to buy Mineral Water by referring to a specific brand Aquafina or 'Kinley' or Bisleri . I also Mind that 'Mother Dairy' even if it is taken as a Brand Name, does not amount to a single product, which rather refers to a basket of products that include milk, butter, cheese, mineral water and what not. Taking into account the fact that the label clearly indicates that the product in question is marketed by Mother Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ma 2017. The Applicant proposes to remove from the package of subject goods all of its registered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflect a name which is registered under the Copyright Act, the same would not constitute a brand name for the purposes of the Exemption Notifications. In any Case, the Applicant 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 respondent to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concern, on the packages of goods packed in unit container, without affixing any brand name/logo, can be considered as 'not bearing a brand name' and whether accordingly the applicant would be eligible for exemption from payment of GST in terms of relevant entries to Notification No.2/2017 CT (rate) dated 28/6/2017 as amended and corresponding entries under Notification No. 02/2017 Integrated Tax (rate) dated 28/6/2017 and Notification No.2/2017 State Tax (rate) dated 28/6/2017 (collectively referred to as 'the exemption Notifications') ii) The attention is invited towards the Explanation appended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of the 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 goods are of the applicant. This also makes it clear that in case of the subject goods proposed to be processed and packed by the applicant himself also, besides statutory requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 procured in processed and packed form from third party vendors: Unprocessed food products are procured by third party vendors and subsequently processed and packed, in terms of the quality standards fixed by the Applicant. The subject goods are thereafter procured by the applicant for being sold from its More 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 packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , '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 goods supplied. This Notification exempts the goods enlisted therein from the applicability of the GST. The products are different but these entries, as claimed to be applicable, are framed in a certain manner. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the services or of the person for whom the goods are manufactured or services are provided : or (vi) as to the mode of manufacture or producing any goods or providing services: or (vii) as to be material of which any 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 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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, Feasters and Kitchen s Promise - that offer unbearable value for homemakers, the company aims to create customers who keep on returning for more. In all, the company's family of Clubmore members has grown to 20 million, all of whom enjoy a host of customised offers and great savings. .. Supermarkets More Quality 1 st Supermarkets - Conveniently located in neighborhoods. More Quality 1 st 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 apparel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombination 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 have products of other manufacturers, too. We find that this fact in fact helps to distinctly identify these products as being the More products which aren't available elsewhere. On this issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c)' have a connection with that customer. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fact branded or not. 16. We are of the opinion that such an approach is necessary to maintain the essence of the concept of a brand name. A brand/trade name must not be reduced to a label or sticker that is affixed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 they are served in plain glasses, without any indication of the company, in a private restaurant. The good will continue to be a branded good of the company that manufactured it. The same principle would apply in the case of potato 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 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 is as at above (a) and (b), the supplies of the products unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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