INDIA RANKED AS SECOND MOST PREFERRED EQUITY INVESTMENT DESTINATION AMONGST EMERGING MARKETS IN 2019

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India has been recently ranked as the second most preferred equity investment destination among the emerging markets in 2019 after Brazil, according to a survey conducted by Bloomberg, a media company based in New York, pertaining to global investors and traders across the world in 2018 (Survey), as per various newspaper reports. The other emerging economies include Indonesia, China, South Africa, Argentina, Russia, Mexico, South Korea.

The Survey, reportedly, showed that the earnings growth in India is expected to be around 27% in 2019. As per the Survey, investment in India may rise in 2019 based on the following factors:

Lesser aggressive Federal Reserve System of The United States of America (USA)

Corporate growth in USA

Rise in earnings in India

Thus, if the Federal Reserve System of USA becomes less aggressive, then there would a lesser raise or hike in interest rates of borrowing by banks from the Federal Reserve of USA, as a result of which the borrowing capacity of the businesses, customers, etc from the banks would be higher. Therefore, the companies may be able to borrow higher amounts of loan from banks at lower rates of interest and use the loan to grow and expand their business, increase their earning, gain a positive image or goodwill in the eyes of the global investors, etc. As a result, this would prompt a greater number of global investors to make equity investments in emerging markets worldwide and help in growth of earnings of the developing countries as well.

As per various newspaper reports, India had attracted USD 22 Billion foreign direct investment (FDI) in 2018 and was one of the top economies to have received the most FDI in 2018.

But experts believe that the only biggest risk in the growth of investments in India is the uncertainty over the outcome of general elections in India in 2019.

Nevertheless, the Survey predicts that the earnings growth in India may become the highest amongst the emerging economies in 2019 and that India would become the second most preferred emerging market for equity investments in 2019.

 

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

GUIDELINES ISSUED BY FOOD SAFETY AND STANDARD AUTHORITY OF INDIA TO REGULATE E-COMMERCE IN FOOD BUSINESS SECTOR

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Reportedly, the Food Safety and Standard Authority of India (FSSAI) has recently in December 2018 issued certain directives and guidelines to curb down the non-compliance of food safety standards by the food operators, operating through the medium of e-commerce. The FSSAI issued a press release dated 01.08.2018 which stated that “e-Commerce platforms did not have details of FSSAI license and /or registration in respect of as many as 30% to 40% of the restaurants listed on their sites”. In such a case, the e-commerce platform could only list those restaurants that had FSSAI license or registration.

It has been observed that a number of e-commerce food business operators  (FBOs) have been disobeying the mandates issued by FSSAI pertaining to registration/licensing of restaurants, etc and that many food operators, whether operation individually or being a partner with an e-commerce player, remain unregistered or unlicensed.

According to Section 3 (o) of the Food Safety and Standards Act, 2006 as amended thereof (“the Act”), “food business operator” in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of the Act, rules and regulations made thereunder.

According to Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011 as amended thereof, all e-commerce FBO’s are required to obtain a license from the Central Licensing Authority for the entire supply chain which shall include its registered office, manufacturers, storage place, distributor, transporter etc. Although, e-commerce entities providing listing/ directory services to the sellers/ brand owners, restaurants, vendors, importers or manufacturers of food products, are not required to obtain license under the Act. But, if an e-commerce entity fulfils the purpose of being an FBO by virtue of an order/transaction on its website, it has to obtain a license/registration and further put it on their virtual/physical platforms for the consumers.

As per the recent directives of FSSAI, the display of the license/registration certificate/number on e-commerce platform or display boards, the agreement between the FBO and the manufacturer or seller to obtain FSSAI license by the latter and the appointment of food safety officers/supervisors, etc, are the mandates to be followed for ensuring that proper food safety guidelines are being followed.

With the implementation of the recent guidelines/regulations of FSSAI, it seeks strict implementation of provisions of the Act. In order to achieve the objects, FSSAI has even directed the e-commerce players to de-list all the FBO’s not having license/registration. Therefore, this would ensure proper compliance of the food safety laws in India.

As per newspaper reports, a number of e-commerce FBOs including Swiggy, Zomato, Grofers, etc. have compiled with such mandates of FSSAI and have also delisted unregistered restaurants from their platform. This is widely believed to be a step towards ensuring proper control over last-mile delivery and safety of food products.

Dushyant Singh

Associate

The Indian Lawyer

With

Harini Daliparthy

Senior Associate

The Indian Lawyer

SUPREME COURT HELD THAT ASSESSABLE VALUE TO BE DETERMINED AS PER PRICE ACTUALLY PAID AND DECLARED IN THE BILLS OF ENTRY

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Recently, the Supreme Court in the case of Commissioner of Central Excise and Service Tax Noida vs. Sanjivni Non-Ferrous Trading Pvt. Ltd. has passed an Order dated 10.12.2018, whereby it held that the assessable value has to be determined on the basis of the price actually paid and declared in the bills of entry, in accordance with the Customs Act, 1962 (the Act).

In general,

assessable value means the value upon which duties and taxes are levied and it is determined based on price actually paid by buyer;

transaction value means the price paid or payable by buyer to the assessee upon sale of goods, etc;

whereas, declared value means the value declared by the assessee in the bill of entry for the purpose of paying duty or tax. In most cases, the transaction value is declared in the bill of entry.

Herein, Sanjivni Non-Ferrous Trading Pvt. Ltd (the Respondent) had declared certain value in a Bill of Entry pertaining to goods imported for the purpose of paying custom duty (Declared Value). But the Assessing Officer had set aside the Declared Value and increased the assessable value based on which the tax/duty would be paid (Assessable Value).

Therefore, the Respondent had approached various authorities including the Commissioner (Appeals), Central Excise and Service Tax Noida to challenge the reassessment of the Assessing Officer, but all such appeals were dismissed. Thereafter, the Respondent approached the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) which allowed the appeal and rejected the reassessment done by the Assessing Officer (the Order).

The Petitioner, then, filed an appeal before the Supreme Court challenging the Order of the Tribunal. The Bench comprising of Justice AK Sikri and Justice S Abdul Nazeer of the Supreme Court held that:

The Assessing Officer had to consider the price actually paid for determining the normal assessable value under the Act.

With reference to the Act, the Supreme Court held that “…Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer.”

The Declared Value could be rejected by the Assessing Officer only with cogent reasons and further held that:

The normal rule was that the assessable value has to be arrived at on the basis of the price which was actually paid, and that was mentioned in the Bills of Entry. The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous.”

The Assessing Officer had to give proper justification in arriving at his own assessable value.

Therefore, based on the aforesaid reasons, the Supreme Court rejected the appeal of the Petitioner and upheld the Order passed by the Tribunal as the Assessing Officer failed to properly examine the evidence while rejecting the Declared Value and while arriving at his own Assessable Value.

Satyam Singh Pal

Associate

The Indian Lawyer

With

Harini Daliparthy

Senior Associate

The Indian Lawyer

SUPREME COURT HOLDS THAT AN EXECUTIVE MAGISTRATE CANNOT DIRECT POLICE TO REGISTER FIRST INFORMATION REPORT WITHOUT COMPLAINANT FOLLOWING PRELIMINARY STEPS

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The Supreme Court in the matter of Naman Singh Alias Naman Pratap Singh and Another vs State of Uttar Pradesh passed an order on 13th December 2018, has held that an Executive Magistrate cannot direct Police to register a First Information Report (FIR).

In this case, a student had lodged a complaint with the Sub-Divisional Magistrate, that she had been conned by an institute into taking admission in an unrecognized institute. The Executive magistrate, on the same day, directed the police to register a FIR and thus an FIR was registered.

The Bench herein questioned whether the Sub-Divisional Magistrate, has the authority to direct the police to register an FIR for a private complaint filed before the Magistrate and such an FIR if registered, is it in accordance with the Code of Criminal Procedure (Cr Pc), 1973 (hereinafter referred to as ‘the Code’)

The Bench while disposing the Judgement considered the following Sections and points:

Section 154 of the Code provides powers to the police to register the FIR and at the instance of the informer reduce it down to writing and getting is signed by the person reporting the FIR.

Section 154(3) of the Code states that, in case an officer refuses to register an FIR then, the person can send his/her complaint in writing by post to the Superintendent of Police who will direct the further proceedings on receiving of such complaint.

Section 156(3) of the Code gives powers to the Magistrate under Section 190 of the Code to order or direct the police to register or lodge an FIR.

The Bench further said, that if the complaint has been filed with the Executive Magistrate within its administrative jurisdiction and if the Magistrate continues to hold an administrative inquiry, then it may be possible for the Magistrate to register an FIR in the matter at his discretion.

The Bench quashing the FIR added, the Student could have herself exercised her powers of lodging an FIR under Section 154 of the Code, or under Section 154(3), or could have moved to the Magistrate under Section 156(3) or, could have filed a complaint under Section 200 of the Code before the jurisdictional Magistrate.

The Supreme Court quashing the FIR, held that an Executive Magistrate does not have authority to direct the police to register the FIR in the first instance. The complainant has to follow the steps that is file a complaint before the police and in the event that the police fails to take action, to approach higher authorities such as Superintendent of Police and in the failure of registration of FIR then and only then can approach the Magistrate for lodging of an FIR.

Suchit Patel

Associate

The Indian Lawyer

THE ACCUSED IS ENTITLED TO LEGAL ADVICE IN SUMMARY COURT MARTIAL IN INDIA

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The Supreme Court in a recent appeal case Jaswant Singh v. Union of India, observed that in a Summary Court Martial Jaswant Singh (Hereinafter referred to as Appellant) is entitled to have the benefit of legal representation. The bench comprising of Justice D.Y. Chandrachud and Justice M.R. Shah set aside an order of punishment of dismissal from service and six months rigorous imprisonment in civil jail, awarded to an Army Sepoy i.e. Jaswant Singh, after finding him guilty of assaulting a superior officer.

The Supreme Court held that an Appellant should be entitled to have the benefit of legal representation during Summary Court Martial proceedings.

The facts of the case are that the Appellant was enrolled as a Sepoy in the Indian Army. The Summary Court Martial Proceeding against the Appellant was held basically on two charges: –

For assault on a Superior Officer

For the use of abusive language against the Subedar who found the Appellant not properly dressed for the parade.

However, the Appellant was freed from the second charge and was found culpable for the first charge, therefore he was dismissed from the service along with six months rigorous imprisonment in civil prison.

Thereafter, the Appellant challenged this order on the grounds of violation of natural justice. The Appellant submitted that during the Summary Court Martial, he was pitted against the commanding officer and he should be entitled to be given an assistance of a Civil Advocate and legal advice.

 

However, the Appellant was denied on the erroneous ground that “if it was only for the offence involving a possible sentence of death, then such assistance could be allowed.”

 

Therefore, the two Judges Bench annulled the order of the Summary Court Martial on the grounds of violation of natural justice.

 

The Supreme Court said that “There was a clear violation of the principles of natural justice. The prejudice too is evident. The Appellant was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away.”

The Supreme Court also referred to Rule 129 of the Army Rules, 1954, in which it clearly observed that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. Therefore, the Supreme Court held that “The expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented,”

 

The Supreme Court while setting aside the order of Summary Court Martial, marked that “In the present case, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense”.

 

Satyam Singh Pal

Associate

The Indian Lawyer

MINISTRY OF HOME AFFAIRS, INDIA AUTHORIZES GOVERNMENT AGENCIES TO MONITOR TECHNOLOGY DEVICES

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The Cyber and Information Security Division, Ministry of Home Affairs (MHA), India has recently issued a statutory order dated 20.12.2018 (Order) under Section 69 (1) of the Information Technology Act, 2000 as amended thereof (the Act) read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 as amended thereof (the Rules).

The said Order authorizes the following security and intelligence agencies (Agencies) for the conduct of interception, monitoring and decryption of any information generated, transmitted, received or stored in any computer resource under the said Act (Purpose):

Intelligence Bureau;

Narcotics Control Bureau;

Enforcement Directorate;

Central Board of Direct Taxes;

Directorate of Revenue Intelligence;

Central Bureau of Investigation;

National Investigation Agency;

Cabinet Secretariat (Research and Analysis Wing);

Directorate of Signal Intelligence (for service areas of Jammu and Kashmir, North-East and Assam only); and

Commissioner of Police, Delhi

As per the Act, the Agencies may call upon any subscriber or intermediary or any person in-charge of a computer resource which has generated, transmitted, received or stored some information and such subscriber or intermediary or person in-charge of the computer resource would have to extend all facilities and technical assistance to provide/secure access to the said computer resource to intercept/monitor/decrypt such information; or to provide information stored in such computer resource. Failing which, the subscriber or intermediary or person in-charge of such computer resource would be punished with a maximum 7 years of imprisonment and shall also be liable to fine.

The leaders of Opposition have reportedly opposed such an Order in the Parliament of India on 21.12.2018 on the ground that such a move would violate the fundamental rights of users of technology devices in India. The Supreme Court had earlier in Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors 2017, had held that right to privacy is a fundamental right under Article 21 of the Constitution of India 1950 as amended thereof.

Further, the technology and digital privacy experts have reportedly stated that although the Order issued is an extension of the law in force but the said Order has been issued without wide consultation by the Government of India. Also, that such an Order may instil fear in the minds of the users of technology devices in India that their activities would be monitored by the Government. Moreover, they have suggested that there should be penalties imposed on such Agencies if they act beyond their powers.

In response to the aforesaid oppositions, the MHA has issued a statement dated 21.12.2018 and stated that the said Order has been issued as per the provisions of the Act and the Rules in force. The Act and/or the Rules provide for safeguard measures including that the MHA is authorized to issue such an Order and to approve each case of interception, monitoring, decryption carried out by the Agencies. Further, the Order would ensure that the Agencies would conduct the interception, monitoring and decryption of information as per the procedure established by law.

Thus, the Government believes that the issue of Order would help to prevent any unauthorized use of power by any or all of the Agencies and that adequate safeguards are already provided under the Act.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SMALL AND MEDIUM SIZE ENTERPRISES SEEK PROTECTION OF INTERESTS AGAINST EXPLOITATION BY E-COMMERCE GIANTS IN INDIA

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In India, the small and medium size enterprises (SMEs), generally, find it difficult to market their products and reach large number of customers owing to financial constraints, lesser public awareness about their products and services, high competition, etc. Thus, they mostly choose to market their products through various e-commerce platforms such as Amazon, Flipkart, etc, with an expectation that they would be able to grab more attention of customers at reasonable costs.

But, recently, a group of small and medium retailers, selling their products/services through Amazon, Flipkart, etc, have alleged that the e-commerce giants exploit them. Further, All India Online Vendors’ Association and other such associations have accused the e-commerce portals of following unregulated and anti-competitive business models such as predatory pricing, deep discounting, preferential treatment to certain large sellers to the disadvantage of small and medium retailers, etc.

Therefore, the small and medium retailers have sought the intervention of the Prime Minister’s Office to safeguard their interests and have also expressed interest in being included in the discussions for drafting e-commerce policy of India, for protection of their interests.

But the e-commerce giants have, reportedly, claimed to have made efforts to create a transparent market, to facilitate market access to SMEs in every corner of the country, etc. Recently, as per various newspaper reports, Amazon India has announced 16.12.2018 as a ‘Small Business Day’ in order to promote SMEs and micro entrepreneurs in India, to empower them to market their products through e-commerce platforms, and to encourage customers to explore, discover and purchase products sold by SMEs. During this one-day online sale, products would be sold at special prices and cashbacks would be provided to buyers.

Such efforts of e-commerce giants may help to boost local employment and local manufacturing in India, and also to facilitate more revenue generation by the SMEs.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HOLDS THAT AN ARBITRATION CLAUSE IN AN AGREEMENT DOES NOT RESTRICT JURISDICTION OF CONSUMER FORUMS

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In the matter of M/S Emaar MGF Land Limited vs. Aftab Singh, the Supreme Court on Monday, 10th December 2018 held that an arbitration clause in a builder-buyer agreement cannot circumscribe jurisdiction of a Consumer Forum notwithstanding amendment of Section 8 of the Arbitration and Conciliation Act, 1996.

Emaar MGF, the appellant in this case, hereinafter called the Appellant, a real estate developer purchased a land in Mohali, Punjab to develop an integrated township. Mr. Aftab Singh, buyer and respondent in this case, hereinafter called the Respondent, submitted an application for allotment in the same.

Consequently, a Buyers Agreement was formulated between the Appellant and the Respondent. In the Buyer’s agreement, there was an arbitration clause providing for the settlement of disputes between parties through arbitration.

When a dispute arose between the parties, the Respondent approached National Consumer Disputes Redressal Commission (NCDRC) and filed a complaint. The Appellant filed an application under Section 8 of the Arbitration Act and referred to clause 43 of the Buyers Agreement for referring the matter to arbitration.

A three-member Bench, rejected the Section 8 Application of the Appellant and held that the NCDRC can proceed with the complaint filed by the Respondent.

The Appellant challenged the Orders of NCDRC in the Delhi High Court. Further, the Delhi High Court held that the appeals filed by the Appellant under Section 37(1)(a) of the 1996 Act have been wrongly brought before the High Court. However, the Delhi High Court refused to entertain the appeals and returned it to be presented before the appropriate Appellate Court.

Thereafter, the Appellant then filed Civil Appeals in Supreme Court challenging the judgment of the NCDRC.

The two Judge Bench of the Supreme Court comprising of Justice Uday Umesh Lalit and Justice Ashok Bhushan, held the complaints filed under the Consumer Protection Act can also be proceeded with despite there being any arbitration agreement between the parties.

Further held that, “The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaints by a consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act as noticed above.”

The Bench referred to the Arbitration and Conciliation (Amendment) Act, 2015 and held that, “The words “notwithstanding any judgment, decree or order of the Supreme Court or any Court” added by amendment in Section 8 were with intent to minimise the intervention of judicial authority in context of arbitration agreement. As per the amended Section 8(1), the judicial authority has only to consider the question whether the parties have a valid arbitration agreement? The Court cannot refuse to refer the parties to arbitration “unless it finds that prima facie no valid arbitration agreement exists”. The amended provision, thus, limits the intervention by judicial authority to only one aspect, i.e. refusal by judicial authority to refer is confined to only one aspect, i.e. refusal by judicial authority to refer is confined to only one aspect, when it finds that prima facie no valid arbitration agreement exists.”

Thus, the Supreme Court ruled that while carrying out amendment under Section 8(1) of Act, 1996, the statutes providing additional remedies/special remedies were not in question and concluded that “in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

Taruna Verma

Senior Associate

G-20 SUMMIT: HORIZONS OF BILATERAL COOPERATION BETWEEN INDIA AND SAUDI ARABIA

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The 13th Meeting of Group of Twenty (G20) Summit, 2018 was held in the city of Buenos AiresArgentina.

Prime Minister Narendra Modi presented India’s agenda in the second session of the G20 Summit on international trade, international financial and tax systems. The Crown Prince of Saudi Arabia (KSA), Mohammed bin Salman was also present in the G20 Summit.

PM Narendra Modi met with KSA Prince in the G20 summit in Buenos Aires on 30th November 2018 to discuss ways to further boost economic, cultural and energy ties between the two countries.

In the meeting, Crown Prince explored investment prospects in India. Further, PM Modi discussed scaling up of KSA’s investments in India to leverage India’s fast-growing economy to which the Crown Prince said that KSA will soon be finalising an initial investment in India’s National Investment and Infrastructure Fund, a quasi-sovereign wealth fund, to help accelerate the building of ports, highways and other projects.

Indian Foreign Secretary Vijay Gokhale, who was accompanying Modi to the G20, said that “the Crown Prince also referred to future projects for investments, in sectors such as technology, energy and farm,”.

Further, following are the investment and trade cooperation plans discussed between PM Modi and the Crown Prince:

  1. The KSA Prince discussed opportunities in agricultural field by replacing imports of agricultural produce of India from other countries.
  2. Saudi oil giant Aramco’s investment in refineries in India, including the company’s project to build a large refinery on the western coast of India;
  3. In the energy sector, the Crown Prince assured to supply petroleum products to India, which is currently facing issues due to rise in price of petrol.
  4. The import of crude oil by India forms a major component of bilateral trade with KSA being India’s one of the largest suppliers of crude oil, accounting for almost one-fifth of its needs.
  5. Invest in solar energy through Soft Bank’s Vision Fund and through the KSA’s companies which will build solar energy projects in India and promote opportunities to export Saudi non-oil products to India. coping

The meeting with the KSA Prince was PM Modi’s first bilateral trade discussion on the sidelines of the G20 followed by meetings with the USA President, Donald Trump and China President, Xi Jinping.

PM Modi took great initiatives for deepening trade ties between Indian and KSA with an aim to enhancing investment opportunities by KSA in India varied sectors such as technology, infrastructure, petroleum, renewable energy, food security, fintech and defence.

Taruna Verma

Senior Associate

GOVERNMENT OF INDIA TO ROPE IN RETAIL CHAINS TO SELL PRODUCTS CARRYING GEOGRAPHICAL INDICATIONS

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The Ministry of Commerce and Industry, India has recently launched the Geographical Indications (GI) Logo and Tagline on 01.08.2018 in order to facilitate branding, promoting and creating awareness among the public about the benefits of GIs and to encourage the local industry that manufactures products having unique features and qualities.

A GI provides identity to products that possess unique quality and features attributable to their geographical origin and that are manufactured by various artisans, farmers, weavers, craftsmen, etc possessing exceptional skills and knowledge of traditional practices and methods. Further, such GIs may be registered under the Geographical Indications of Goods (Registration and Protection) Act, 1999 as amended thereof (the Act) to ensure protection against misuse or duplication by producers of similarly identical products produced in a different geographical location. As per few newspaper reports, GI registered products in India include Banarasi Sarees, Chanderi fabric, Tirupati Laddoo, blue pottery of Jaipur, Darjeeling Tea, etc.

In furtherance of the protection provided by the Act, the Government has introduced the GI Logo and Tagline, which would now act as a certifying mark to identify all the GIs registered under the Act. Further, the Department of Industrial Policy and Promotion (DIPP), India has recently sought tie-ups with big retail chains in India around 07.12.2018 for promotion and sale of GI registered products under the GI Logo and Tagline. This would have a two-fold advantage:

It would facilitate the Government to create awareness and promote the sale of a whole range of registered GI products in India.

It would also ensure quality assurance to the consumers and enable them to easily identify genuine GI products.

As a result, the Government would be able to reach out to a greater number of consumers willing to purchase GI products, now being sold under GI Logo and Tagline, and also encourage the local industry to manufacture more such unique products and expand their business in the country.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer