AI Drafter 
TaxTMI 
TaxTMI 
2018 (5) TMI 700
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....t 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 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 enabl....
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....f 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 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 g....
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....on'), the supply of subject goods, When put up in unit containers and infer alia bearing a 'registered brand name', attract GST at the rate of 5%. The Applicant, in respect of supply of the subject goods under either strems, is presently discharging GST at the rate of 5%. 6. It is relevant to note that the requirement to have specific declaration on the package of the subject goods, as regards its manufacturer, is a statutory requirement in terms of the Legal Metrology Act, 2009 read with the Legal Metrology (Packaged Commodity) Rules, 2011, and, the Food Safety and Standards Act, 2006 read with Food Safety and Standards (Packaging and Labelling) Regulations, 2011, the relevant extracts of which legislations [collectively referred to as Subject Statutory Provisions'] are provided below- Legal Metrology Act, 2009 'Section 18 Declarations on pre-packaged commodities.- (1) No person shall manufacture, pack, sell, import distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such slandered quantities or number and bears thereon such declarations and particular in such manner as may be prescribed' Legal M....
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....eneric 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 applicability of certain Notifications in respect of the subject goods intended to be sold by the Applicant in the proposed packaging, which issue is more particularly described in Annexure Il hereto. Annexure II - STATEMENT CONTAINING APPLICANT'S INTERPRETATION OF LAW AND/OR FACTS, AS THE CASE MAY BE, IN RESPECT OF THE QUESTION(S) ON WHICH THE ADVANCE RULING IS REQUIRED ....
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....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 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 ....
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....gible 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. It therefore needs to be examined whether, in terms of the declarations that would be made on the packages to be sold under Stream 1 and Stream 2, the subject goods can be said to be "bearing a brand name on which an actionable claim or enforceable right in a court of law is available In terms of the CGST Notification, where the goods bear a brand name on which an actionable cla....
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....s a connection in the course of trade between the goods and the person using such name. (ii) The product 'Milk Chocolate' is manufactured and sold by Mondelez India Foods Private Limited, under the brand name 'Cadbury Dairy Milk'. It is evident that the brand name indicating a connection in the course of trade between the product, namely 'Milk Chocolate' is 'Cadbury Dairy Milk' and not 'Mondelez India Foods Private Limited' Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Astra Pharmaceuticals (P) Ltd. vs Collector of C. Ex, Chandigarh [1995 (75) E.L.T. 214 (S.C.)], wherein, the Hon'ble Court, while examining the scope of certain Central Excise Notification inter alia noted that brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. 1.13. With the above in view, reliance is further placed on the following decision of the Courts wherein the issue under consideration was whether the name of the manufacturer/packer, which is required to be mentioned on the package of the product in terms of a statutory require....
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....ourt 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 product and the person. This name or mark etc. cannot, therefore, be the identify of a person itself. It has to be something else which is appended to the product and which establishes the link. 11. There is a value attached to the brand name, value which has been recognized in the tariff entry by providing for....
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....n 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 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 p....
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....aging 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 mentions the declaration 'Marketed by Aditya Birla Retail Limited' in addition to the name and registered address of the manufacturer, whether the same would be construed to be a 'brand name': 1.18. As submitted in the forgoing paragraphs, as held by the Hon'ble Supreme Court in the case of Tarai Foods (Supra), the name of a company, which is its identity, cannot be construed to be a 'brand name', in view of the meaning provided to the phrase. It has to be something apart from the name of the company, which is appended to the product to establish a connection in the course or trade. Further, in the case of Pepsi Foods (supra), the Hon'ble Supreme Court has held that mere printing of the name of the company on unit container does ....
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....nable the customers to identify and buy products based on their requirements, budget and preferences. Such declarations made on the package by inter alia using common/generic words viz. 'Value 'Choice' and 'Superior' are only aimed at creating a clearly identifiable distinction between different quality versions of the same product. Considering that the said terms would therefore not indicate any connection in the course of trade between the Applicant and the products, but would only reflect its quality versions, the same would not qualify as 'brand name'. 1.23. In this regard, it is also relevant to refer to Section 9 of the Trade Marks Act, which lays down the 'absolute grounds of refusal of registration' of a name or mark or a logo, as a trademark under the said Act. Section 9(1)(b) states that a trade mark 'which consist exclusively of marks or Indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service', shall not be registered. The definition of 'tradema....
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....tifications. (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. Bajra 100821020 10082920 2. Barley 10039000 3. Basmati Rice 10063020 4. Boiled Rice 10063010 5. Brown Rice 10062000 6. Jawar 10082910 10082110 7. Maize 10059000 8. Rags 10082930 10082130 9. Rice-Others 10063090 10. Wheat 10019910 2. Location of Applicant's Sr. No. Location 1. Bangalore 2. Delhi 3. Hyderabad 4. Pune 5. Chennai 6. Cochin 7. Kolkata Exhibit C List of subject goods which are sold under Stream 2 Sr.No. Broad Product description HSN Code 1. Barley 10039000 ....
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....t brand name is one which establishes the said connection with or without indicating identity of such person. Therefore, in the present case, where the product packaging, though having its name, will not have the brand 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 Applic....
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....Standards Act, 2006 ('FSSA') 'no person shall manufacturer, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labelled in the manner as may be specified by regulations'. Rule 6 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 ('FSS Regulations') in turn mandates provision of details of the manufacturer of the product on the corresponding package, Relevant extract of the FSSA and FSSA Regulations are enclosed as Annexure L. • Therefore, in case it is construed that name of the 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/ notifi....
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....g a common mark in all his products to indicate the origin of the goods from the enterprise (known as 'House mark'). This practice is more predominant in the pharmaceutical trade. Though both are trade marks are registrable as such, each has its own distinct function. While the house mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement • Astra Pharmaceuticals (P) Ltd. vs Collector Of C. Ex, Chandigarh [1995 (75) E.L.T. 214 (S.C.)] 'The 'AP' or 'Astra' on the container or packing was used to project the image of manufacturer generally. It did not establish any relationship between the mark and the medicine. For instance, if the appellant instead of using Dextrose injections would have described it as Astra injection or Astra Dextrose injection then it could be said that a relationship between the 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 Indu....
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.... (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 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 ....
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....asim (supra), the Hon'ble Court was concerned 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 Income Tax (Investigation) (2002) 257 ITR 123 (Del).]' • Armaendra Pratap Singh v. Tej Balendar Prajapati - 2004 (10) SCC 65= &....
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....ed under the Copyright Act. In this regard it is confirmed that the same is not registered thereunder. It is further clarified that the said disclosure in the proposed packaging pertains to the artwork used in the said packaging, which artwork is also not registered under the Copyright Act. To this extent, as the packaging would not reflect a name which is registered under the Copyright Act, the same would not constitute a brand name for the purposes of the 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:- ....
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....any other person to use his name/and address in the said manner. It appears to be an absurd proposal. Therefore it appears that the applicant is not in a position to fulfill the condition of the subject notification to be eligible for the exemption from the payment of GST. 3. Since the applicant has not provided the vital information as discussed above in paragraph 2 necessary to decide the issue, it is prayed that the application may be rejected ab initio in terms of Section 98(2) of the Central Goods and Services Act, 2017. 4. With reference to said application of the applicant following further submissions are made as preliminary submissions and detailed response would be submitted at later stage :- i) The main issue involved in this application is that whether furnishing details of the applicant i.e. name and registered address, in capacity as the manufacturer or in capacity of marketing 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 Notificat....
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....wo 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'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 th....
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....rough 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 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 ....
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....yright Act, either before or after 15^th May 2017. Since it is a future transaction, we proceed with the above submission that - • The goods would be packed in a unit container. • None of the registered trademarks of the applicant would appear on the packages in respect of both the Streams. • Common/ generic terms viz. 'Value', 'Choice' and 'Superior' 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 a....
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....rrespective of whether or not the brand is subsequently deregistered: (B) a brand registered as on or after the 15^th under the Copyright Act, 1957(14 of 1957); (C) a brand registered as on or after the 15th May 2017 under any law for the time being in force in any other country • ANNEXURE 1 For foregoing an actionable claim or enforceable right on a brand name, - (a) the person undertaking packing of such goods in unit containers which bears a brand name shall file an affidavit to that effect with the Jurisdictional commissioner of Central tax that he is voluntarily foregoing his actionable claim or enforceable right on such brand name as defined in Explanation (ii)(a); and (b) the person undertaking packing of such goods in unit containers which bear a brand name shall, on each such unit containers, clearly print in indelible ink, both in English and the local language, that in respect of the brand name as defined in 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 undert....
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.... (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 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 ....
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....untry 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, 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....
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.... Trade Marks Act, 1999 where we have the following definition - (m) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof: It can be seen that a 'mark' includes a 'name'. Further, it also includes a combination of colours. In 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 pro....
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....e factor to hold a good as branded. The decision referred to above only made a limited point that invoices alone cannot be the sole basis of construing whether a good is a branded good or not; it does not hold that a specified good itself must be stamped with a brand name. It is, therefore, permissible to look into the environment of the good. However, like in the case of Kirloskar generators (Superex Industries [CCE v. Superex Industries, (2005) 4 SCC 207]), invoices bearing brand name could not be the sole basis of construing whether goods are branded or not. That decision would depend on the facts and circumstances of the case. There can be no precise formula for such a determination: in some cases certain factors may carry more weight than in other situations. However, 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 e....
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....ixing the brand/trade name of customers on the elastics. They are being so affixed because The appellants and/or the customer wants to indicate that the 'goods (elastic)' 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....
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.... 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 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 h....
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....ation. 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 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 s....
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....ame or mark. Therefore, in order to qualify as "brand name" or "trade name" it has to be established that such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer." In the present case, the applicant also has a family of customers purchasing from the More Stores and associating the Brand with some quality standards. Thus, the customers are aware of the More brand as 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 o....
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....pears or does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. And we have shown above that people are aware of the fact that More brand products are available at the More Stores alongwith the products of other manufacturers or brands- There is an identity established with the products which are available at no place other than the More Stores. We have come to the conclusion which is fortified by decisions of the Hon. Courts that the products supplied under Stream 1 and Stream 2 would amount to supply under a brand name on the basis of all the above factors and the attending circumstances. Stream 3 The question in respect of Stream 3 needs details and facts as are submitted in respect of the Streams 1 and 2. The question cannot be raised in isolation and with an incomplete 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 Stre....