ELP BIS Series – Part 3: Obtaining BIS License in India – Procedure and Practicalities

The final part of this three-part comprehensive series on the legal framework governing BIS license, discusses in detail the procedures to be followed for obtaining BIS licence from the relevant authorities in India. This part also highlights certain practical insights, especially while interacting with authorities. The article also discusses certain interpretational issues, typically faced while obtaining BIS licenses. Issues include stocks in hand prior to the date of mandatory application of requirement to obtain BIS licences, classification of parts, mixtures etc. and application of BIS Standards thereto.

The procedure for granting a BIS license is stipulated under the Bureau of Indian Standards (Conformity Assessment) Regulations, 2018 (BIS Regulations). The said Regulations prescribes a total of eight Conformity Assessment Schemes, varying in parameters such as testing, inspection, whether a license or a certificate of conformance is issued, including the prescription for mandatory factory and market audits to be carried out. Notably, the most rigorous of all the Schemes applicable to majority products covered under the BIS Regulations is Scheme I and the present article focuses on the procedure for grant of BIS license as mandated under the given Scheme I.

If one wants to obtain a BIS license under Scheme I, the following steps can be followed:

• Determination of coverage under Quality Control Order (“QCO/ BIS Order”)^[1]

The first step while applying for a BIS license would be to determine coverage of the products under the scope of the relevant QCO. In some cases, this first step may be challenging and complex, if the product in question is available in multiple variants and combinations. In order to determine the coverage under a QCO, one would have to dissect in detail, the “scope” clause of the QCO, to arrive at the coverage under the relevant Indian Standard (IS), as well as the Product Manual issued by the BIS.

The Product Manual issued is in the nature of a technical manual, providing clarification as regards the scope of QCO as well as other aspects – such as – sampling guidelines, list of test equipment, Scheme of Inspection and Testing (SIT) etc. The product manual typically covers the grouping guidelines which define how multiple products can be covered within the single category, thereby providing clarification as regards coverage under the QCO.

• Preparation prior to filing application

Prior to actual filing of the application for obtaining a BIS license, it is important that certain preparatory steps are carried out to ensure that complete and accurate data is collated and submitted in the application.

To this end, key preparatory activities to be carried out are listed below:

• Ensuring adequate equipment in the factory premise: The application requires submission of accurate data in relation to the machinery/ test equipment present at manufacturing facility. It is therefore essential to ensure, prior to filing the application, that all the machinery and testing equipment required to be detailed in the application are available at the manufacturing premises, and that they conform to the requirements specified in the IS.
• Earmarking of testing area within factory premises: The applicant should have an earmarked area within the manufacturing premises for setting up a lab to conduct the requisite tests as prescribed under the QCO read with the Product Manual.
• Appointment of Authorized Indian Representative (AIR): For foreign manufacturers, an Authorized Indian Representative (AIR) must be appointed in advance. AIR would be the person responsible on behalf of the foreign applicant for all the statutory compliances under the provisions of the BIS Act, 2016. Further, the BIS authorities would consider the AIR as the key point of communication on behalf of the foreign manufacturer. Thus, identification and appointment of AIR would be a crucial step prior to filing of application by foreign manufacturers. There are certain qualitative pre-requisites that a person should fulfil in order to be eligible for nomination as an AIR which can be found here.

• Filing of application for BIS license

Once the relevant pre-application preparation is carried out, an application for BIS licence is required to be filed in the prescribed formats, along with specified annexures. The table below enlists the relevant forms and underlying documents which are required and submitted to BIS for the grant of BIS licence under Scheme I:

• Preparation prior to factory visit
• Scheduling the visit

The BIS, on receipt of an application for grant of a BIS licence, examines the underlying forms and supporting documents. If the application is found to be complete, the BIS authorities will process the same and issue letters for conducting a visit to factory premises of the applicant and direct the applicant to pay the requisite charges (discussed below).

• Statutory fees and other charges

Once the applications for grant of BIS licence have been processed, and the factory visit has been scheduled, the BIS determines the applicable charges and fees and issues a letter stating the total quantum of amount to be deposited for conducting the visit. The charges under the head of “inspection charges” are applicable to both Indian and foreign manufacturers. There are however certain additional charges to be deposited by a foreign manufacturer. Such cumulation of the charges for foreign manufacturers can be found here . After the payment of the statutory fees and other charges, an inspection notice is sent by the BIS authorities to the applicant for scheduling the factory visit.

• Preparation of factory premises

The visit is undertaken to inspect the overall functioning of the factory from a quality control perspective (such as verifying the manufacturing flow chart, testing facility, qualification of the quality personnel, hygiene check etc.) in accordance with BIS Act and regulations thereunder.  The BIS Scientist is required to carry out certain specified activities during his/her visit, which can be found here .

• Factory visit

The factory visit by the BIS scientist is usually for one day in case of Indian manufacturing premises and two days in case of foreign manufacturing premises (excluding the travel days). During the visit, the BIS Scientist will be drawing two set of samples from the factory premises.  The first set will be shipped [to be arranged by the applicant itself] for testing at an Indian laboratory as selected by the scientist and disclosed only at the time of the visit; while the second set will be tested at the lab within the applicant’s manufacturing premises. Based on the results of the tests carried out during the factory visit, a test report is prepared by the Scientist. Top management personnel in-charge of the manufacturing premises are expected to be present during the visit of the BIS scientist for signing the report.

• Testing of samples post factory visit

One set of samples drawn by the scientist during the visit is required to be sent by the applicant for testing to a BIS authorized lab in India. Once the lab issues the test result, the same will be reviewed by the BIS for their correctness and conformance to the Indian Standard. In case the test results take longer than a month, a test report generated at the internal laboratory within the manufacturing premises may be considered for the grant of licence, and same shall be ratified on receipt of third-party laboratory report for conformity.

• Rectification of defects, if any, and grant of BIS licence

The BIS authorities during their verification of documents and details may raise objections in case any discrepancies are noticed. Some instances of such discrepancies include:

• Mismatch of the details provided in the application and supporting documents like company incorporation documents, machinery equipment, testing facility, calibration reports, manufacturing process flow, etc.
• If the product fails, the tests conducted by the third-party BIS accredited lab.
• If there is a non-disclosure of information on the part of the applicant. Such information could be pertaining to top management, production process, etc.

If the above issues are raised by the BIS – to avoid any adverse consequence like rejection of the application, the applicant is expected to give adequate justification and file explanatory letters/details with the concerned scientist, ensuring the rectification of all the defects mentioned by the scientist. Usually, a time of 21-30 days’ is provided to the applicant to rectify the errors identified in the application submitted.

The BIS on being satisfied that the applicant is eligible for grant of BIS licence (on having submitted all the above documents), will grant a licence to use or apply a Standard Mark in the manner specified in the BIS Act and regulations thereof.

Upon and after the receipt of the BIS license, a licensed manufacturing premise should also be mindful of certain periodic/ongoing requirements which are mandated for the ongoing use of BIS license, and which enable the manufacturer to continue applying the Standard Mark on covered products.

Some of these are:

• For foreign manufacturers – submission of Indemnity Bond, BIS Agreement and the Performance Bank Guarantee: (As also discussed in Part I) a Performance Bank Guarantee (PBG) of USD 10,000 and an indemnity bond is required to be executed for grant of a BIS licence for foreign manufacturers, through signing of an agreement between BIS and the foreign manufacturer. The need for PBG from a foreign manufacturer is to ensure that in case of any violation of the BIS Act, Rules and Regulations- including non-payment of marking fee dues and breach of terms and conditions of the license- BIS would be able to enforce the PBG.
• Payment of applicable Marking Fees: For marking of the products with a Standard mark, the licensee is also required to pay applicable marking fees. A “minimum marking fees” is calculated in terms of the average production capacity of the relevant industry. Once the average for the same is determined, the licensees are required to pay the minimum marking fee in advance for the first year of licence at the time of obtaining the license. The actual marking fee needs to be calculated at the end of first year. It is based upon the actual production on which the BIS mark is used against which the advance fee paid is adjusted.
• Scheme of Inspection and Testing (SIT): Periodic testing is required to be carried out in terms of the SIT at such intervals as prescribed in the relevant Product Manual. The Product Manual may prescribe separate periodicity for different tests, and these are required to be complied with on an ongoing basis. Test reports so generated are required to be preserved at the manufacturing premises. Such records may come handy in case of surprise audit being conducted by the BIS personnel.
• Updating BIS about important changes: Any changes such as changes in laboratory personnel at the manufacturing premises, changes in machinery and testing equipment, the calibration certificates of the machines, the manufacturing process flow and the factory location needs to be communicated to the BIS at the earliest.
• Periodic returns as may be prescribed by BIS: Additionally, for some products, there is also a requirement to declare the consignee details periodically. Such consignee details would include number of BIS marked articles which are supplied by the licensed premises to Indian customers (refer https://www.manakonline.in/MANAK/login for more details).

The licence is granted initially for a period of not less than one year and up to two years depending upon the discretion of the BIS.  The licensee is required to apply for the renewal of the license three months prior to the expiration of the validity of the licence, pursuant to which the BIS licence may be extended for a period of one to five years. In case the licensee applies for renewal post the expiry of the initial validity of BIS licence, the licensee will be required to pay a late fee and during such period of delay, the licence will be inoperative.

The licensee may add new products or change the scope of the current licence by making a simple application along with the supporting documents. These includesubmission of original test report(s) from BIS recognized laboratories showing conformity of the product to relevant Indian Standard(s), details of additional manufacturing and/or testing facilities in the prescribed format, and declaration as prescribed under the relevant Product Manual, if any in this regard.

• Applicability of QCO to existing stock in hand

While one seeks to comply with a particular QCO, an issue may arise relating to applicability of the QCO on the existing stock manufactured prior to the date from which BIS licence is made mandatory. In relation to such stock, it is noteworthy that in the past, specific exemptions have been provided under particular QCOs. For example, in relation to Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012 [now replaced by the 2021 Order] (IT Goods QCO), issued under the erstwhile Bureau of Indian Standards Act, 1986 (1986 Act), a specific notification was issued inter alia setting out that “All products manufactured / imported before the notified date of coming into the order, i.e. July 3, 2013 shall not be covered by the provisions of the Order”. Thus, relevant exemptions in relation to each such applicable QCO would have to be examined to determine whether such facilitation has been provided for the stock in hand. In the absence of such specific exemption and upon a plain reading of Section 17 of the BIS Act, stock in hand, if any, would not be allowed to be imported, sold, stored for selling, etc.

• Regarding coverage of goods/products in a QCO

For interpretation of the scope of the QCO, the Indian courts have relied upon the “common parlance test”.  Hence, if a product was understood in the common parlance to be covered within the terms used in the QCO, then such a product was held to be covered within the ambit of QCO. In Kerneos Indai Aluminate Technologies Private Limited vs. UOI[2], the Hon’ble Andhra Pradesh High Court dealt with the issue of whether HARC (Aluminous Cement) was covered within Cement (Quality Control) Order, 2003. The said QCO itself defined and covered “cement” widely as follows: “(d) ‘cement’ means any variety of cement manufactured or sold in India and includes blast furnace slag cement, portland pozzolana cement, rapid hardening Portland cement, white portland cement, hydrophobic portland cement,… or any other variety of cement which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Order”. In this context, the Hon’ble Andhra Pradesh High Court gave due relevance to the understanding of cement in common parlance and held that in popular or commercial usage, HARC is not understood as “cement”. It also relied upon the decision of the Hon’ble Supreme Court in Associated Cement Co. Ltd. v. State of M.P[3] which, while looking at the popular and commercial usage of the term “cement” held in the context of export tax that “refractory material produced by the appellant does not fall within the Entry “all types of cement” and consequently it is not eligible to levy of export tax”.

Thus, for determining coverage of products – including variations/ combinations/mixtures of the product, the test of “common parlance” may prove useful while making a definitive determination.

• Applicability to products imported, which are subsequently exported

QCO typically applies to products sold in India and therefore contain a specific exclusion as regards to the products which are exported out of India. However, one issue that arises in this regard is the coverage of products which are imported, but subsequently exported out of India- whether the QCO would still cover such products. On a harmonious reading of the QCO with Section 17 of the BIS Act and General Notes Regarding Import Policy set out in Schedule I of the ITC(HS), 2017 (“General Notes”), a view can be adopted that the products imported from outside India for purposes of re-export may not attract the provisions of the QCO. This view emerges from the following aspects:

• Typically, the QCO itself stipulate that it shall not apply for “goods or articles meant for export”
• In terms of para 2 of the General Notes, “Quality of the products that are subject to mandatory Indian Standards, as applicable to domestic goods, shall be required to comply with quality specified for the product as per same Indian Standards”.
• Therefore, given that domestic products which are meant for export are not subject to the QCO, this provision may be interpreted to mean that QCO should not apply for products which are brought into India and which are meant for re-export.

However, such a view may be disputed based upon a plain reading of Section 17 of the BIS Act, which sets out that “No person shall manufacture, import, distribute, sell, hire, lease, store or exhibit for sale any such goods, article, process, system or service under sub-section (1) of section 16…. (a) without a Standard Mark, except under a valid license”. Further, in this context, one may also refer to instances where Indian authorities have given specific dispensation with regards to imported goods meant for export. This indicates that in the absence of such specific dispensation, the requirement would continue for such imported goods (though ultimately meant for exports)[4].

• Implications for marked goods kept in the premises prior to obtaining license

As per Section 17(3) of the BIS Act “No person shall use or apply or purport to use or apply in any manner, in the manufacture, distribution, sale, hire, lease or exhibit or offer for sale of any goods, article, process, system or service, or in the title of any patent or in any trade mark or design, a Standard Mark or any colourable imitation thereof, except under a valid licence from the Bureau”. In light of this definition, a question arises on the status of finished un-licensed products which are lying at the shop floor, warehouses, etc. prior to the issuance of the BIS licence. In this context, one can usefully refer to the decision in Tata Metaliks Kubota Pipes Limited and Ors. Vs. Union of India and Ors.[5], where, it was observed that the requirement to not “use” an un-licensed product would apply even to products already produced by the manufacturer prior to the date of issuance of the BIS licence. Thus, such goods would not be eligible to carry the Standard Mark and businesses should be careful to not mark their products till the BIS license is actually obtained.

To trade in India, obtaining a BIS License becomes a critical and indispensable requirement for entities covered under QCOs. As on 31^st March, 2021, the total number of operative BIS licences issued to domestic manufacturing premises aggregated to 37873, whereas those issued to foreign manufacturing premises was 1009 for 119 Indian Standards in 53 countries across the world[6]. Further, given the escalation in the number of QCOs issued in recent times, and with COVID-related restrictions now progressively relaxed, one can expect to see the number of BIS licenses being issued rise further.

The conformity assessment procedures in India to obtain the BIS license are one of the most stringent in the world. Further, the Indian Government has repeatedly indicated its intention to strictly enforce QCOs to ensure quality standards in the country. It would thus become important for international and domestic businesses to understand their obligations and ensure compliance of applicable requirements for providing BIS marked products in the country.

We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at insights@elp-in.com or write to our authors:

Nishant Shah, Partner – Email –  NishantShah@elp-in.com
Stella Joseph, Partner – Email – StellaJoseph@elp-in.com
Prakhil Mishra, Associate – Email – prakhilmishra@elp-in.com;
Pulkit Devpura, Advocate – Email – pulkitdevpura@elp-in.com

[1] Refer ELP’s BIS Series – Part 2: Legislative Framework In India (https://www.mondaq.com/india/contracts-and-commercial-law/1170384/elp39s-bis-series-part-2-legislative-framework-in-india)
[2] W.P. Nos.24863 of 2020 & 49 of 2021, (AP HC, 17.06.2021).
[3] [2005 (4) ALT 27 (SC)].
[4] For instance, the Minutes of the 98^th Meeting of the Board of Approval for SEZs held on 29^th May, 2020, dealt with a similar issue. The applicant in that case, an SEZ Unit, had imported non-BIS products (caustic soda lye) for manufacturing of Alumina Trihydrate in its SEZ unit. While the Board allowed the applicant to utilize such non-BIS caustic soda and export the final goods in this single instance, it required an undertaking that the applicant will not import non-BIS products in future.
[5] W.P. 16603 (W) of 2009 with W.P. 14315 (W) of 2009 with W.P. 12814 (W) of 2009, (05.02.2010 – CALHC).
[6] https://www.bis.gov.in/wp-content/uploads/2022/02/Annual_report_for_final_approval_on_12-1-2022.pdf.