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2015 (12) TMI 1244 - DELHI HIGH COURT

2015 (12) TMI 1244 - DELHI HIGH COURT - TMI - Commission of an offence u/s 33/51 & 39/63 of Standards of Weights and Measures (Enforcement) Act, 1985 and Packaged Commodities Rules, 1977 - Notice under Section 251 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) issued by the learned Metropolitan Magistrate challenged - whether 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?

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sed 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.

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, befo .....

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e 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 of Criminal Procedure by the Metropolitan Magistrate are hereby quashed. - WP(CRL) No.695/2013 - Dated:- 23-9-2015 - .....

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ger of the company, the notice under Section 251 of the Code of Criminal Procedure (for short Cr.P.C. ) issued by the learned Metropolitan Magistrate on 23.4.2012 in CC No.599/11/WM. 2. The notice under Section 251 of the Code of Criminal Procedure reads hereunder:- I, Sheetal Chaudhary, MM, Patiala House Courts, do hereby serve notice u/s 251 of the Cr.P.C. upon you M/s Bridgestone India Pvt. Ltd., B-100, Naraina Industrial Area, Phase-I, New Delhi-110028 through Sh.Gurmeet Singh. It is alleged .....

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ove offences are within my cognizance and I hereby direct that you be tried by this Court. (Sheetal Chaudhary) MM/PHC/ND/23.04.2012 Notice has been read over and explained to the accused and questioned as under: Q. Do you plead guilty or claim trial? Ans. I do not plead guilty and claim trial. RO&AC (Sheetal Chaudhary) MM/PHC/ND/23.04.2012 3. On 18.8.2010, Inspector, Legal Metrology visited the office/CNF premises of the petitioner company and seized an empty packet of tube manufactured by t .....

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s 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 cl .....

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ld be referred to the Court of law for trial in accordance with the rule in that regard. 8. The petitioner filed the reply to the aforestated notice on 2.11.2010 stating that in the month of June, 2000 i.e. on the manufacturing date, the MRP of the product (tube) was ₹ 320 only. The said tube was manufactured and packed in the factory premises in the month of June, 2010 and the MRP of the said tube on such manufacturing date was ₹ 320 only which also appears on the package seized. Al .....

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as also annexed along with the reply. 10. It was further stated by the company (petitioner) that the packing materials are always ordered in bulk which have printed MRP. As and when the MRP of the tube is revised, stock of unused packing material is used by blacking out the old printed MRP on such packing material and new MRP is printed besides the same. It was further clarified by the petitioner company that the bar on reprinting MRP operates only when the product leaves the factory premises. I .....

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ewla, Khanpur, New Delhi on 1.2.2011 before the Court of the Metropolitan Magistrate, Patiala House Courts, New Delhi alleging commission of offences punishable under Rule 39/63 of Standards of Weights and Measures (Enforcement) Act, 1985. The complaint inter-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 .....

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ce 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 enacted. 16. It has been submitted that Section 95 of the I .....

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te and seal and the same cannot be accepted as a complaint in the eyes of law. Learned advocate appearing for the petitioner company submitted that the contention of the respondent that no one appeared before the designated authority for compounding the offence is factually incorrect. The authorised representative of the company, it is stated, personally visited the office of the authority concerned on 18.10.2010 and sought time for replying to the notice. It has also been submitted that a simil .....

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e pertain to pasting of additional label. There is no bar on the manufacturer to blank out the entire declaration and reprint the revised declaration, before packaging. 19. The notification regarding the above clarification is reproduced as below:- Kindly refer to your letter no.MS/A/93 dated 8/9/93 addresses to Mrs.Sathi Nair, Jt. Secretary seeking clarifications regarding amendment made to the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 on 26th August, 1993. In this .....

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ontain 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 declar .....

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ndia vide their letter No.WM-9(68/2014) dated 29.10.2014 has re-clarified as under:- ..... that the following provisions of sub Rule 7 of Rule 23 of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 shall apply:- The manufacturer or packer shall not alter the price on the wrapper once printed and used for packing. 21. It is, therefore, submitted on behalf of the State that the contention of the petitioner company about no bar on blanking out earlier declarations and re-printin .....

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ards of weights and measures, for regulating inter-State trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number, and to provide for matters connected therewith or incidental thereto. 23. Rule 23 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 which has been framed in exercise of powers conferred by Section 83 of the Act of 1976 reads as hereunder:- 23. Provisions relating to wholesale dealer and retail dealers .....

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red that a sale, distribution or delivery by a wholesale dealer to a retail dealer or other person is a "retail sale" within the meaning of this sub-rule.] [(3) ***](Omitted by GSR No.105 (E) dated 2-3-1995) [(4) Where, after any commodity has been pre-packed for sale, any tax payable in relation 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 .....

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ised 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 in relation to any pack .....

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ll apply to a package which is not required, under these rules to indicate the month and the year in which it was pre-packed. (6) No retail dealer or other person shall obliterate, smudge or alter [the retail sale price], indicated by the manufacturer or the packer, as the case may be, on the package or on the label affixed thereto. [(7) The manufacturer or packer shall not alter the price on the wrapper once printed and used for packing.] 24. The proviso to the rule categorically states that wh .....

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r, reconfirms that the manufacturer or the packer shall not alter the price on the wrapper once printed and used for packing. (Emphasis supplied). What is prohibited by Rule 23 is that the customer ought not to be charged any price in excess of the revised prices even if the revised prices are lower than the price marked on the package. It is under this context that sub Clause (7) clarifies that the manufacturer or packer will not alter the price on the wrapper once printed and used for packing. .....

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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 suc .....

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tion 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. 28. Section 33 of the Act of 1985, provides for the Standards Act and the Rules made with regard to commodities in packaged form which has to apply to every commodity in a packaged form which is distributed, sold or kept, offered or ex .....

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in force immediately before the commencement of this Act, with regard to commodities in packaged form shall, as far as may be, apply to every commodity in packaged form which is distributed, sold, or kept, offered or exposed for sale, in the State as if the provisions aforesaid were enacted by, or made under, this Act subject to the modification that any reference therein to the "Central Government", "Standards Act" and the "Director" shall be construed as referenc .....

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form" shall have the meaning assigned to it in the Standards Act and shall include a pre-packed commodity. Section 39 - Penalty for keeping non-standard weights or measures for use and for other contravention (1) Whoever keeps any weight or measure other than the standard weight or measure in any premises in such circumstances as to indicate that such weight or measure is being, or is likely to be, used for any- (a) weighment or measurement, or (b) transaction or for industrial production .....

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re 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 .....

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nd or subsequent offence, with imprisonment for a term which may extend to one year and also with fine. 30. 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. 31. It has been argued on behalf of the State/respondents that the complaint or the notice under Section 251 of the Cr.P.C ought not t .....

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