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TMI Blog2008 (10) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the purview of the Act and the Rules. A glance at this provision and more particularly to Explanation I would suggest that the Refrigerator is covered under the term “pre-packed commodity”. Even if the package of the Refrigerator is required to be opened for testing, even then the Refrigerator would continue to be a “pre-packed commodity”. There are various types of packages defined under the Rules and ultimately Rule 3 specifically suggests that the provisions of Chapter II would apply to the packages intended for “retail sale” and the expression “package” would be construed accordingly. It is not disputed before us that the sale of the Refrigerator is covered under the “retail sale”. Once that position is clear Rule 6 would specifically include the Refrigerator and would carry along with it the requirements that Rule of printing certain information including the sale price on the package. Thus it is clear that by being sold by the manufacturer in a packaged form, the Refrigerator would be covered by the provisions of the Act and SWM (PC) Rules and it would be imperative that the MRP has to be printed in terms of Rule 6 which has been referred to above. - 11936 of 2001 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cannot readily use electronic printers. Computer compatible software drivers are to be installed before electronic printers arc made usable. Just buying a printer from a retail dealer of TVS Electronics without proper installation of software is futile. They are ordinarily not sold off the shelf and are marketed as a single unit and not in lots of more than one piece. It appears that on 16-8-2000 fifth respondent inspected M/s. Elite Electronic Industries Limited, Labbipet, Vijayawada (hereafter, Elite Electronics). He found one retail package of MSP 245 9 wire 136 columns DOT Matrix printer manufactured by TVS Electronics without marking of sale price and therefore he issued a show cause notice dated 16-11-2000 calling upon first petitioner to submit explanation as to why action should not be taken for violation of Rules 4 and 6(1)(f) of Package Rules and Section 39 of the Act. Fifth respondent again inspected Elite Electronics on 4-12-2000 with two witnesses (panchas) and issued notice dated 9-1-2001 alleging that one retail package of Lexmark 211 color jet printer was being sold and that said package does not contain name and address of importer and retail sale price. He the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Kodanda Ram made following submissions. (1) In the absence of notification under Section 1(3)(d) of the Act notifying Computer inkjet/DOT Matrix printer as commodity in packaged form , the Act and the Rules cannot be applied to these goods manufactured by petitioners; (2) Inkjet/DOT Matrix printer is not a commodity and it cannot be treated as a commodity in packaged form ; and (3) Electronic printers are fragile and sensitive and therefore they are offered for sale protecting them in package form with proper insulation. Even though electronic printers are kept in well-insulated packages, they cannot be treated as commodity in packaged form or packaged commodities because a person who buys them cannot be readily use without installation of software printer drivers in PCs with which printers are intended to be used. Learned Counsel placed reliance on Titan Watches Ltd v. Senior Inspector Legal Metrology, W M Dept - 2003 (2) ALD 577, Eureka Forbes Limited v. Union of India - 2003 (2) ALD 742. Titan Industries Ltd v. Union of India - AIR 2006 Bom. 336 and Subash Arjandas Kataria v. State of Maharashtra - 2006 (5) MHLJ 361. 2. The contentions and submissions made by learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint, and different dates may be appointed for different- (a) provisions of this Act, (b) areas, (c) classes of undertakings. (d) classes of goods, (e) classes of weights and measures, or (f) classes of users of weights and measures, and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision in such areas, or in respect of such classes of undertakings, goods, weights and measures or users of weights and measures in relation to which this Act has been brought into force. (Proviso omitted) 3. it is well accepted legislative practice that sometimes legislation after its enactment is not brought into force immediately. The power to bring the legislation into force is entrusted to the executive Government (and it is not considered as delegation of legislative power). It is absolutely within the discretion of executive Government to bring into force an enactment and Mandamus cannot be issued to Government to enforce the statute or provision. A legislation more often than not confers wide ranging power on executive Government to enforce an enactment eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll aspects found in Section 1(3) and not extracted to any of them. The submission of learned counsel for petitioners, therefore, cannot be accepted. Learned counsel for petitioner relied on Titan Watches Limited v. Senior Inspector Legal Metrology, W M Department - 2003 (2) ALD 577, in which this Court took a view that in the absence of notification under Section 1(3)(d) of the Act, the Act has no application to wrist watches. It appears this Judgment of learned Single Judge is in appeal being W.A. No. 1448 of 2004. Therefore, the same is not helpful to petitioners. In Subash Arjandas Kataria v. State of Maharashtra = 2006 (4) AIR Bom 570 = 2006 (5) MhLJ 361 the view of Andhra Pradesh High Court was not accepted by Division Bench of Bombay High Court. The Division Bench considered a question that when once a notification under Section 1(3) of the Act is issued, appointing the date or the dates for enforcing various provisions of the Act, there is no requirement of issuing notification/notifications specifying dates with reference to other classes under Section 1(3) of the Act. The following passage may be beneficially extracted. 6. It may be pointed out that by Notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useful or valuable thing (see The New Oxford Dictionary of English: Indian Edition 2002) but Parliament has used the meaning in a broader sense. All valuable things, which are offered for sale are commodities for the purpose of the Act. Chapter IV of Part IV of the Act (only Section 39) deals with commodities in packaged form intended to be sold in course of inter-State trade or commerce. Section 39(1) of the Act prohibits manufacturing, packaging and/or selling any commodity in packaged form unless such package bears label to identity the commodity in the package, net quantity in terms of standard unit of weight or measure of the commodity in package, the accurate number of commodities in the package, the unit sale price and the like. Sub-section (9) of Section 39 of the Act empowers Central Government to exempt classes of commodities or packages from all or any of the provisions of Section 39 of the Act. Other sub-sections of Section 39 of the Act provide that every package shall contain the name of manufacturer or packer and also other details. As per heading of Chapter IV Section 39 of the Act applies only to commodities in packaged form sold during the course of inter-State t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time when delivery is taken from such carrier or bailee. Explanation II: Where the movement of any such weight, measure or other goods commences and terminates in the same State, it shall not be deemed to be a movement of such weight, measure or other goods from one State to another merely by reason of the fact that in the course of such movement it passes through the territory of any other State; 9. In view of the above, this Court has no doubt to conclude that when first petitioner distributes electronic printers in Andhra Pradesh through their office at Hyderabad, there is inter-State trade and commerce. Hence, if electronic printers can be considered as commodities in packaged form and/or pre-packed commodities . Section 39 read with Section 31 applies. 10. Pre-packed commodity means a commodity placed in a package when the purchaser is not present, so that the commodity placed in package can be taken out for testing or examining or inspecting the commodity [Section 2(1) of Package Rules]. The commodities in packaged form and pre-packed form are used interchangeably. Package Rules shall apply only to commodities in packaged form. It may be noticed that Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part IV (Sections 31 to 46 of the Act) is to protect the economic interest of consumers as well as to regulate inter-State trade or commerce. The commodities in packaged form, which are not sold in the course of inter-State trade or commerce are also regulated by Package Rules and the intention of the provisions of the Act and the Rules is the same. A reference may be made to ITC Limited v. CCE - 2004 (7) SCC 591, wherein Supreme Court held as under (para 40) - Para 38 of 2004 (171) E.L.T. 433 (S.C.) The Act as well as the Packaged Commodities Rules have been enacted to protect the consumers who are entitled to pay only such price as has been printed thereon. The purpose of printing the MRP on cigarette packages is to achieve a standardisation of prices throughout the country and to inform consumers of the appropriate price of the product. There is no scope for underdeclaration because the consumer can insist on the retailer abiding by the printed MRP. Provisions for penalties under the Act on the retailer ensure this. It is not open to the retailer who may be proceeded against for selling above the printed MRP to contend that it was incorrect or false, nor can the retailer def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged form . In Titan Watches Limited (supra), this Court held that in the absence of notification under Section 1(3)(d) of the Act covering watches, the Act would not apply. In Titan Industries (supra), a Division Bench of Bombay High Court applied the same test, when they observed, the test to see whether a commodity is pre-packed commodity would be - firstly whether by the very nature of commodity, it requires to be packed before it can be sold (and) secondly in the event a package is opened, does it undergo any perceptible change or reduction in value . Applying this test, Bombay High Court in Subash Arjandas Kataria (supra) held that sunglasses are not pre-packed commodities. Again the same test was applied. 13. The inkjet/DOT Matrix/Laser electronic printers manufactured and distributed, presumably displayed in electronic shops on shelves without package for the purpose of demonstration. When the same is sold, it is delivered in a pre packed form along with necessary compact discs (CDs) which contain software for printer drivers. Unless and until printer drivers are installed in an electronic printer, same cannot be used. That is to say when once an electronic printer is rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s out of the purview of the Act and the Rules. As per Section 13(2) of General Clauses Act, 1897, in law when statute uses plural, it also means singular and vice versa. In a recent judgment in Whirlpool of India Limited (supra), Supreme Court considered the question whether Refrigerator is a packaged commodity. The question came to be considered in the light of Central Government Notification No. 9 of 2000, dated 1-3-2000 under Section 4A(1) and (2) of Central Excise Act, whereby refrigerators vide Entry 48 thereof invited valuation under Section 4A of Central Excise Act. As per the said provision, the goods shall be valued on the basis of Maximum Retail Price (MRP), which is required to be printed on packages of such goods. The contention raised by assessee was that refrigerators manufactured by them are not packaged commodities. It was also contended that the provisions of the Act and Package Rules are not applicable to refrigerators. The contention was repelled by High Court. While confirming the judgment of Punjab and Haryana High Court, the Apex Court interpreted the term pre-packed commodity as defined under Section 2(l) of Package Rules and laid down as under. 15. A gla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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