Recently, The GST Council had made the recommendations relating to revise the scope of exemption i.e., to exempt only those items which are not pre-packaged, labelled retail pack in terms of Legal Metrology Act, in its 47th meeting held in Chandigarh on 28-29th June 2022 under the chairmanship of the Union Finance & Corporate Affairs Minister Smt. Nirmala Sitharaman.

Accordingly, The above recommendations have been notified by CBIC vide Notification No. 06/2022- Central Tax (Rate) dated July 13, 2022 amending the Notification No. 1/2017-Central Tax dated June 28, 2017 whereby the most of these items are eligible for exemption only in case they are other than 'pre-packaged and labelled'.

The Notification has defined the phrase 'pre-packaged and labelled' as:

The expression 'pre-packaged and labelled' means a 'pre-packaged commodity' as defined in clause (l) of section 2 of the Legal Metrology Act, 2009 (1 of 2010) where, the package in which the commodity is pre-packed or a label securely affixed thereto is required to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder.'.

Let us understand the meaning of the above terms 'pre-packaged commodity' from the Legal Metrology Act. Section 2(l) of the Legal Metrology Act, 2009 defines pre-packaged commodity as "pre-packaged commodity" means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity.
From the above, it is clear that the commodity must be-
1. pre-packed without the purchaser being present and kept ready for sale to a customer.
2. placed in a package of whatever nature, whether sealed or not.
3. has a pre-determined quantity.
As per Section 2(f) of The Legal Metrology Act, 2009 "label" means any written, marked, stamped, printed or graphic matter affixed to, or appearing upon any pre-packaged commodity.
As per Rule 2(k) of The Legal Metrology (Packaged Commodities) Rules, 2011 "retail package" means the packages which are intended for retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein and includes the imported packages.
Provided that for the purposes of this clause, the expression 'ultimate consumer' shall not include industrial or institutional consumers.
Accordingly, if the following are satisfied, the goods will be liable to GST @5%:
a. If the goods are packed in a package of a pre-determined quantity,
b. The package can be whether or not sealed, and
c. It should be a package which is required to adhere to the provisions of The Legal Metrology Act, 2009 and rules thereunder, regarding declarations to be made on the package.

Relevant provisions of Legal Metrology Act and Rules:
The notifications giving effect to the decisions of 47th GST Council meeting borrow definitions of terms like "pre-packaged commodity", "label" and "retail package" from Legal Metrology Acts and Rules or other applicable restrictions and exemptions.
As per section 18 of the Legal Metrology Act, 2009, 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 standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed.
Further, the following rules under Legal Metrology (Packaged Commodities) Rules, 2011 are relevant:
A. As per Rule 3 of The Legal Metrology (Packaged Commodities) Rules, 2011 The provisions of this Chapter shall not apply to,-
(a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and
(b) packaged commodities meant for industrial consumers or institutional consumers.
Explanation :- For the purpose of this rule,-
i) "institutional consumer" means the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodities directly from the manufacturer for use by that institution.
ii) "industrial Consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer for use by that industry.
B. Rule 6 under Chapter II of The Legal Metrology (Packaged Commodities) Rules, 2011 lists out the declarations to be made on every package to bear thereon or on the label securely affixed thereto, a definite, plain and conspicuous declaration made in accordance with the provisions of this chapter.
C. Rule 26 of The Legal Metrology (Packaged Commodities) Rules, 2011 provides for exemption in respect of certain packages, wherein it states that nothing contained in these rules shall apply to any package containing a commodity if:
a. the net weight or measure of the commodity is 10g or 10 ml or less, if sold by weight or measure;
b. any package containing fast food items packed by restaurant or hotel and the like;
c. it contains scheduled formulations and non-scheduled formulations covered under the Drugs (Price Control) Order,1995 made under section 3 of the Essential Commodities Act, 1955 (10 of 1955)';
d. agricultural form produces in packages of above 50 kg.

Impact Analysis

Retail packages:
Notified products of packages of up to 25kg and 50kg (in case of agricultural farm produce) will not be eligible for GST exemption and henceforth these products will be taxable @5%.
Wholesale packages:
"wholesale package" means a package containing-
(i) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or
(ii) a commodity sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity to the consumer in smaller quantities; or,
(iii) packages containing ten or more than ten retail packages provided that the retail packages are labeled as required under the rules.
Declarations applicable to be made on every wholesale package Every wholesale package shall bear thereon a legible, definite, plain and conspicuous declaration as to-
(a) The name and address of the manufacturer or importer or where the manufacturer or importer is not the packer, of the packer;
(b) the identity of the commodity contained in the package; and
(c ) the total number of retail package contained in such wholesale package or the net quantity in terms of standard units of weights, measures or number of the commodity contained in wholesale package;
Provided that nothing in this rule shall apply in relation to a wholesale package if a declaration similar to the declarations specified in this rule, is required to be made on such wholesale packages by or under any other law for the time being in force.
Accordingly, the wholesale package in the form of pre-packaged and labelled also gets covered within the tax net of 5%. Though, as per Press release after the 47th GST Council meeting It had been recommended to revise the scope of exemption to exclude from it pre packaged and pre-labelled retail pack in terms of Legal Metrology Act, including pre-packed, pre-labelled curd, lassi and butter milk. Whereas as per the notification issued it seems that the intention of keeping wholesale package as taxable might have been to keep the entire chain in the tax net with credit set off.
Supply for industrial and institutional consumer:
As per rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011 "industrial consumer" means the consumer who buys packaged commodities directly from the manufacturer or from an importer or from wholesale dealer for use by that industry and the package shall have declaration 'not for retail sale';
As per rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011 "institutional consumer" means the institution which buys packaged commodities bearing a declaration 'not for retail sale', directly from the manufacturer or from an importer or from wholesale dealer for use by that institution and not for commercial or trade purposes.
Accordingly, the goods sold in packages up to 25kg and 50kg (in case of agricultural farm produce) to consumers or institutes who buy packaged commodities directly from the manufacturer or from an importer or from wholesale dealer for use by that industry/ institution and the package shall have declaration 'not for retail sale' then they would be eligible for exemption under GST irrespective of the quantum of packaging.
Sale of Agricultural Farm Produce:
The agricultural farm produce would be liable to GST even if the quantum of its supply is above 25 kg but below 50 kg.
It would be important to understand the meaning of the term 'Agriculture Farm Produce' as the term 'agricultural farm produce' is not defined in Legal Metrology (Packaged Commodities) Rules, 2011.
In common understanding a farm produce is understood as something which is coming directly from the farm. Farm produce means fresh fruit, vegetables, herbs, eggs, or grains etc. which are directly sold in bags out of the agricultural farm would be covered here.
However, it is pertinent to note that in some cases the goods are not directly removed from the farm but on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market like washing, cutting, cleaning, drying, segregating, testing, etc.
The question that arises is whether such supply of goods (after the primary activities) from the farm would also be considered for the extended limit of 50 kg. The answer to this question would be based on the nature of the activities undertaken post removal of the goods from the farm and hence taxpayers need to assess the same for their goods basis the activities undertaken by them.
Key scenarios for understanding:
From the above, it can be concluded that the following are the exclusions from The Legal Metrology (Packaged Commodities) Rules, 2011, meaning that the exemption under GST would be applicable to these packages for the notified goods:
a. Packages more than 25kg;
b. Packages more than 50kg in case of agricultural farm produce.
c. Packages of 10g/ 10ml or less, and
d. Packages (of whatever quantity) which are meant for industrial consumers or institutional consumers.
The same is briefed below for your understanding:

HSN wise list of goods which will become taxable when sold in pre packed and labelled form

Challenges and issues need clarifications and time
There are many open-ended issues i.e. meaning of agricultural farm produce, wholesale packages with or without labelling at secondary packing, identification of intent and usage of buyers for buying the products etc. which require more clarifications.
It would be relevant to point out that at this time the law with regards to packaged commodities is far from established. In view of the judgements passed by the various High Courts and the Hon'able Supreme Court there is an ambiguity in the definition of 'pre-packaged commodity' and The Legal Metrology (Packaged Commodities) Rules, 2011 and the said issue is under consideration before a three Judge bench of the Hon'able Supreme Court in the civil appeal Number 1117/2010 in the case of State of Maharastra vs Subhash Arjundas Kataria.
An immediately suitable clarification from CBIC would benefit all of us. Also, trade and industry should assess their various scenarios, identify open ended issues and put it forward to the GST Council for clear clarifications so that the industry does not face a new set of challenges and litigation.
In fact, an amendment of this complexity, affecting so many products, require more time than given for the taxpayers to assess the impact on their businesses and configure their systems to comply with the changes.

Klick here for the copy of the Notification