TMI Blog2015 (12) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the label was blacked out and printed separately by changing the MRP and after the packing of the contents. Thus the clarification vide notification No.SSR57B(E) dated 26.8.1993 referred to above namely that there is no bar on the manufacturer to blank out the earlier declarations and reprint the revised declarations, before packaging is not in derogation of or inconsistent with sub Clause (7) of Rule 23. Thus it cannot be assumed that the petitioner company packaged the content namely the tube and thereafter reprinted the label of price on the wrapper. Thus no offence under any one of the sections of the Act of 1985 can at all be said to have been made out. Be it noted that the Standards of Weights and Measures (Enforcement) Act, 1985 has been repealed with effect from 01.03.2011 vide Section 57 of the Legal Metrology Act, 2009. However, since the alleged offence is said to have been committed prior to the repeal, the provisions of the 1985 Act would apply. On the above premised reason, this Court considers the charges against the company to be absolutely groundless and, therefore, the complaint (Complaint No. 600/11/WM) and the notice under Section 251 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Growth Centre, Pithanpur, Distt. Dhar, 454774 (CC No.022-42496400, size 1.467 m, net content 1 tube manufacturing date June 2010, valve shot, key features PC 145/70 R 12. MRP was mutilated and rewritten wrong as ₹ 320 (inclusive of all taxes). Empty packet seized and attached violation under Section 33/51. It is an offence as per the available record. 5. A show cause notice was thereafter issued to the company by the Controller/Assistant Controller, Legal Metrological department of NCT of Delhi alleging that the petitioner has committed a breach of Section 33/39 of the Packaged Commodities Rules, 1977/Standards of Weights and Measures (ENF) Enforcement Act, 1985 and, therefore, is guilty of offence punishable under Section 51/63 of the Act. 6. The show cause notice dated 11.10.2010, further made it clear that Section 65 of the aforesaid Act provides for compounding of offence on payment for credit to the Government of such amount as may be specified by the Controller/Assistant Controller/Legal Controller, Metrology. 7. By the above notice, the petitioner was asked to, in case it wished to compound the offence, to visit the office of the Controller/Assistant Contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-alia stated that the opportunity which was given to the petitioner to have the offence compounded was not availed of by the petitioner. It was, therefore, prayed that the petitioner be tried for the offences alleged. 12. Pursuant to such a complaint, the impugned notice referred to above was issued by the learned Metropolitan Magistrate on 23.4.2012. 13. It is contended on behalf of the petitioner that even if the allegations in the complaint are taken on its face value, none of the ingredients of the offence alleged is made out as there is no allegation of any act of omission or commission for bringing home charges under the aforesaid offences. It is further contended that in case of the petitioner admitting the fact that the price which was rewritten was ₹ 320/- which was the standard price, there was no need to try the petitioner for any offence. 14. The core contention of the petitioner has been that there has not been any unjust enrichment to the company or any loss to the prospective customer and there is complete absence of any malafide intention. 15. There is nothing on record to suggest violation of the object for which the special legislation was enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules. It means that putting a label on the carton of the package is allowed. This label should have a place for principal display panel as required under the rules and this panel should contain all the declarations. Point No.2: Alterations mentioned in the rule pertain to pasting of additional label. There is no bar on the manufacturer to blank out the earlier declaration and reprint the revised declaration, before packaging. Point No.3: Any registered newspaper of any language can be used to give the advertisement and the advertisement should be given by the manufacturer or packer. Point No.4: Bar-coded labels are treated at additional declarations. Marking of additional declarations like the name of the retail dealer, sale price of the package being less than or equal to MRP declared by the manufacturer are not prohibited. However, they cannot be used for upward revision of price. You may circulate this to members of your Association. 20. Mr.Rahul Mehra, learned Standing Counsel appearing for the respondent submitted that a further clarification was sought by the department from the concerned Ministry regarding the clarificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to such commodity is revised, the retail dealer or any other person shall not make any retail sale of such commodity at a price exceeding the revised retail sale price, communicated to him by the manufacturer, or where the manufacturer is not the packer, the packer and it shall be the duty of the manufacturer or packer, as the case may be, to indicate by not less than two advertisements in one or more newspapers and also by circulation of notices to the dealers (2)and to the Director in the Central Government and Controller of Legal Metrology in the States and Union Territories, the revised prices of such packages but the difference between the price marked on the package and the revised price shall not, in any case, be higher than the extent of increase in the tax or in the case of imposition of fresh tax higher than the fresh tax so imposed: Provided that publication in any newspaper, of such revised price shall not be necessary where such revision is due to any increase in, or in imposition or, any tax payable under any law made by the State Legislatures: Provided further that the retail dealer or other person, shall not charge such revised prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked price on the package is more than the revised price, a customer could not be charged in excess of the revised price, irrespective of the month in which the commodity was pre-packed. What is of importance here is that a customer is not to be charged over and above and in excess of the price prevailing in the market at the time of purchase. 26. The reply to the show cause notice dated 11.10.2010 by the petitioner company makes it very clear that the wrapper with the same MRP of ₹ 320/- was ordered in bulk which remained unused. A revised price is required to be printed before packing the contents. It was in this context and under such circumstances that the initial label which fortunately and incidentally contained the same MRP pwas blacked out and a separate MRP of ₹ 320/- was printed. This fact stands buttressed by the invoices sent to the retailers throughout the country which was made part of the show cause notice. That apart, it is not the case of the respondent that the label was blacked out and printed separately by changing the MRP and after the packing of the contents. 27. Thus the clarification vide notification No.SSR57B(E) dated 26.8.1993 referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction or for industrial production or for protection, shall be punished with fine which may extend to two thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine. (2) Whoever,- (i) in selling any article or thing by weight, measure or number, delivers or causes to be delivered to the purchaser any quantity or number of that article or thing less than the quantity or number contracted for and paid for, or (ii) in rendering any service by weight, measure or number, renders that service less than the service contracted for and paid for, or (iii) in buying any article or thing by weight, measure or number, fraudulently receives, or causes to be received any quantity or number of that article or thing in excess of the quantity or number contracted for and paid for, or (iv) in obtaining any service by weight, measure or number, obtains that service in excess of the service contracted for and paid for, shall be punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to five y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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