Ministry of Consumer Affairs, Food and Public Distribution notifies the BIS Act, 2016

Ministry of Consumer Affairs, Food and Public Distribution notifies the BIS Act, 2016

November 3, 2017 Industry Specific 0

The Ministry of Consumer Affairs, Food and Public Distribution has notified the Bureau of Indian Standards Act, 2016 (“New Act”) vide a notification dated October 12, 2017. The New Act has come into effect vide this notification.

Background:

The New Act has constituted Governing Council which will supervise, direct and manage the affairs of the Bureau of Indian Standards (“Bureau”). However, the Bureau will be the national body which will have the power to take all necessary steps for promotion, monitoring and management of the quality of goods, articles, processes, systems and services as may be necessary to protect the interests of consumers and various other stake holders.

Some of the highlights of the New Act are discussed in the table given below:

Bureau of Indian Standards Act, 1986 (“Old Act”)Bureau of Indian Standards Act, 2016 (“New Act”)Implication
 

Not present

Definitions

 

a. “assaying and hallmarking centre” means a testing and marking centre recognised by the Bureau to determine the purity of precious metal articles and to apply hallmark on the precious metal articles in a manner as may be determined by regulations;

 

b. “certified jeweller” means a jeweller who has been granted a certificate by the Bureau to get manufactured for sale or to sell any precious metal article after getting the same hallmarked in a manner as may be determined by regulations;

 

c. “conformity assessment” means demonstration that requirements as may be specified relating to an article, process, system, service, person or body are fulfilled;

 

d. “conformity assessment scheme” means a scheme relating to such goods, article, process, system or service as may be notified by the Bureau under section 12;

 

e. “jeweller” means a person engaged in the business to get manufactured precious metal article for sale or to sell precious metal articles;

 

f. “precious metal” means gold, silver, platinum and palladium;

 

g. “precious metal article” means any article made entirely or in part from precious metals or their alloys;

 

The New Act has introduced various new concepts, for instance, provisions relating to conformity assessment, compliances to be followed by jewellers and sellers of precious metals, goods or articles , etc have been introduced. Thus

 

Pursuance to the same, new concepts and explanations have been brought about in the Definition clause of the New Act.

Not PresentSection 13. Grant of licence or certificate of conformity

 

(1) A person may apply for grant of licence or certificate of conformity, as the case may be, if the goods, article, process, system or service conforms to an Indian Standard.

 

(2) Where any goods, article, process, system or service conforms to a standard, the Director General may, by an order, grant—

 

(a) a certificate of conformity in a manner as may be specified by regulations; or

 

(b) a licence to use or apply a Standard Mark in a manner as may be specified by regulations, subject to such conditions and on payment of such fees, including late fee or fine, before or during the operation of the certificate of conformity or licence, and as determined by regulations.

 

(3) While granting a certificate of conformity or licence to use a Standard Mark, the Bureau may, by order, specify the marking and labelling requirements that shall necessarily be affixed as may be specified from time to time.

 

(4) The Bureau may establish, maintain or recognise testing laboratories for the purposes of conformity assessment and quality assurance and for such other purposes as may be required for carrying out its functions.

 

 

The New Act has introduced grant of certificate of conformity to Indian Standards. Therefore, a person may apply for grant of certificate of conformity if the good, articles process, system or service conforms to an Indian Standard.

 

Pursuance to the same, the Central Government may specify marking and labelling requirements that must necessarily be affixed for obtaining certificate of conformity.

 

Previously, the option of obtaining certificate of conformity was not available. This is newly introduced to supplement the ease of doing business by limiting unnecessary field inspections.

 

Not present

 

Section 14 .Certification of Standard Mark of jewellers and sellers of certain specified goods or articles

 

(1) The Central Government, after consulting the Bureau, may notify precious metal articles or other goods or articles as it may consider necessary, to be marked with a Hallmark or Standard Mark, as the case may be, in a manner as specified in sub-section (2).

 

(2) The goods or articles notified in sub-section (1) may be sold through retail outlets certified by the Bureau after such goods or articles have been assessed for conformity to the relevant standard by testing and marking centre, recognised by the Bureau and marked with Hallmark or Standard Mark, as the case may be, as specified by regulations.

 

(3) The Central Government may, after consulting the Bureau, by an order published in the Official Gazette, make it compulsory for the sellers of goods or article notified under sub-section (1) to be sold only through certified sales outlets fulfilling such conditions as may be determined by regulations.

 

(4) The Bureau may, by an order, grant, renew, suspend or cancel certification of Standard Mark or Hallmark of a jeweller or any other seller for sale of goods or articles notified under sub-section (1) in such manner as may be determined by regulations.

 

(5) The Bureau may establish, maintain and recognise testing and marking centres, including assaying and hallmarking centres, for conformity assessment and application of Standard Mark, including Hallmark, on goods or articles notified under sub-section (1), in a manner as may be specified by regulations.

 

(6) No testing and marking centre or assaying and hallmarking centre, other than the recognised by the Bureau, shall with respect to goods or articles notified under sub-section (1), use, affix, emboss, engrave, print or apply in any manner the Standard Mark, including the Hallmark, or colourable imitation thereof, on any goods or article; and make any claim in relation to the use and application of a Standard Mark, including the Hallmark, through advertisements, sales promotion leaflets, price lists or the like.

 

(7) Every recognised testing and marking centre, including assaying and hallmarking centre, shall use or apply Standard Mark on good or articles notified under sub-section (1), including Hallmark on precious metal articles, after accurately determining the conformity of the same in a manner as may be specified.

 

(8) No recognised testing and marking centre, including assaying and hallmarking centre, shall, notwithstanding that it has been recognised under sub-section (5), use or apply in relation to any goods or article notified under sub-section (1) a Standard Mark, including Hallmark, or any colourable imitation thereof, unless such goods or article conforms to the relevant standard.

 

The Bureau of Indian Standards Act, 2016 (“New Act”) has provided for compulsory standard marking of  certain precious metal, goods or articles,  as may be notified by the Central Government from time to time.

 

The items of precious metals to be notified from time to time must be marked with a Hallmark or Standard Mark as specified. The New Act further provides that the Central Government may also make it compulsory for the sellers of the notified goods or articles to sell only through certified sales outlets.

 

In case the notified metals, goods or articles are not marked as specified, no person will be permitted to import distribute, sell, store or exhibit for sale, any such goods or article without the certification of the Bureau of Indian Standards (“Bureau”). Moreover, a certified jeweler or seller will not be allowed to sell, display, or offer to sell any notified goods or articles unless his goods or articles are marked with a Standard Mark or Hallmark.

 

Previously, a certified jeweler or seller was allowed to display, distribute, sell or store precious metals, goods or articles. With coming in force of the New Act, the jewelers or sellers not only have to be certified by the Bureau but even the goods or articles have be marked with Standard Mark or Hallmark, as may be specified.

 

 

Section 12.

 

No person shall, except in such cases and under such conditions as may be prescribed, use without the previous permission of the Bureau, –

 

a.         any name which so nearly resembles the name of the Bureau as to deceive or likely to deceive the public or which contains the expression “Indian Standard” or any abbreviation thereof; or

 

b.         any mark or trade mark in relation to any article or process containing the expressions “Indian Standard” or “Indian Standard Specification” or any abbreviation of such expressions.

 

 

 

Section 26. Restriction on use of name of Bureau and Indian Standard

 

26. (1) No person shall, with a view to deceive or likely to deceive the public, use without the previous permission of the Bureau,—

 

(a) any name which so nearly resembles the name of the Bureau as to deceive or likely to deceive the public or the name which contains the expression “Indian Standard” or any abbreviation thereof; or

 

(b) any title of any patent or mark or trade mark or design, in relation to any goods, article, process,system or service, containing the expressions “Indian Standard” or “Indian Standard Specification” or any abbreviation of such expressions.

 

(2) Notwithstanding anything contained in any law for the time being in force, no registering authority shall— (a) register any company, firm or other body of persons which bears any name or mark; or (b) register a trade mark or design which bears any name or mark; or (c) grant a patent, in respect of an invention, which bears a title containing any name or mark, if the use of such name or mark is in contravention of sub-section (1).

 

(3) If any question arises before a registering authority whether the use of any name or mark is in contravention of sub-section (1), the registering authority may refer the question to the Central Government whose decision thereon shall be final.

 

The New Act provides that a person, without the previous permission of the Bureau, will not use title of any patent, mark, trademark or design in relation to any goods, article, process, system or service containing the expressions “Indian Standards” or “Indian Standard Specification” or any abbreviation of expressions.

 

 

Previously, a person was not allowed to use, without previous permission from Bureau, any mark or trademark in relation to any article or process containing the expressions “Indian Standard” or “Indian Standard Specification”.  The New Act has included within the ambit of restriction, not only usage of mark or trademark of article or process but also title or patent and designs of goods, system and service containing name of Bureau and Indian Standards.

 

35.

 

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

 

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

 

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

 

 

 

 

Section 30. Offences by companies

 

Where an offence under this Act has been committed by a company, every director, manager, secretary or other officer of the company who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, or authorised representative of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, irrespective of the fact that the offence has been committed with or without the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, or authorised representative of the company.

 

 

The New Act has specifically listed down the persons to be held liable in case of offence committed by a company under the New Act.

 

Therefore the following persons who was in charge of and was responsible to the company for the conduct of the business of the company, will be held liable in case of offence by the company:

 

a. Director,

b. Manager,

c. Secretary,

d. Other office of the company,

e. Authorised representative of the company.

 

The New Act further provides that such persons as mentioned above will be held liable for offences committed by the company irrespective of the fact that the offence has been committed without the consent or connivance of, or is attributable to any neglect on the part of the persons mentioned above.

 

Prior to this, the Old Act did not specifically listed the persons to be liable for offences committed by the company. Moreover, the director, manager, secretary or other officer of the company could shed away the liability if it was proved that offence has been committed without the consent or connivance of, or without any negligence on part of such director, manager, secretary or other officer of the company.

Not presentSection 31. Compensation for non conforming goods

 

Where a holder of licence or certificate of conformity or his representative has sold any goods, article, process, system or service, which bears a Standard Mark not conforming to the relevant standard, or with colourable imitation, the certified body or licence holder or his representative shall be liable to compensate the consumer for the injury caused by such non-conforming goods, article, process, system or service in such manner as may be prescribed.

The New Act has introduced the compensation for non conforming goods.  With the introduction of certificate of conformity to Indian Standards, license holders of certificate of conformity will be liable to compensate the consumer for injury caused by their goods,  article, process, system or service in case such goods, articles etc bears Standard Mark not conforming to the relevant standard, or with colourable imitation.

 

 

Source: Ministry of Consumer Affairs, Food and Public Distribution (Attached)

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