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TMI Blog2011 (8) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... for listing before a Larger Bench X X X X Extracts X X X X X X X X Extracts X X X X ..... ompounding fee. By order dated 5-5-2006, the High Court, by appreciating the submissions made on behalf of the respondent, allowed the writ petition holding that the sun glasses, whether it be a frame or glass is not a "pre-packed commodity" within the definition of the expression "pre-packed commodity" under Rule 2(l) of the Rules. Aggrieved by the said order of the High Court, the appellant-State preferred the present appeal by way of special leave petition. 5. It is the stand of the respondent that the Act brings in its purview not all the items which are kept in the package to protect or for other reasons but is limited to packaged commodity as defined under the Act, which are being sold by weights or measures or numbers, and which are being sold in a packed form without unpacking such packaged commodities at the time of sale and the sun glasses do not come within the ambit of definition of "commodity in packaged form" in terms of Section 2(b) of the Act nor under the purview of "pre-packed commodity" under Rule 2(l) of the Rules. It is also highlighted that sunglasses cannot be sold in the packaged condition without opening the packaging since the customer will buy only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not opened for the purpose of testing as in the case of electric bulbs. It was asserted by the learned senior counsel for the respondent that the sun glasses are tested by the buyer for his suitability. 9. Similar arguments were advanced by the respective counsel relating to their respective products. On careful scrutiny of the provisions referred above, it is clear that the expression "pre-packed commodity" would be applicable to commodities which are packed and the commodity packaged has a predetermined value and that value cannot be altered without the package sold being opened at the time of sale or the product undergoes a modification on being opened. We are also of the view that the Explanation I to Rule 2(l) of the Rules is not attracted because the package is not opened for the purpose of testing as in the case of electric bulbs. We fully agree that the sun glasses are tested by the buyer for his suitability, and therefore, sun glasses, whether it be a frame or glass is not a pre-packed commodity within the definition of the expression "pre-packed" under Rule 2(l) of the Rules, hence, the High Court is fully justified in quashing the notice and allowing the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a commodity which is sold in a package. Significantly, the appellant is not aggrieved by its valuation being under Sections 4-A(1) and (2) of the Act. The only complaint that the appellant made is that the appellant should not be required to print MRP on the package of the refrigerator manufactured by it. The appellant, therefore, filed a writ petition before the High Court of Punjab and Haryana praying, inter alia, for a writ of certiorarified mandamus restraining the authorities for taking any coercive measures against the appellant or its Directors, officers, servants or agents for not declaring MRP on the refrigerators manufactured and cleared by the appellant from its factory. The Notification dated 1-3-2000 was challenged to this limited extent only. Before the High Court, the appellant pleaded that refrigerator is not such a commodity which can be termed to be a "packaged commodity and further the provisions of the Act or the Rules made thereunder are not applicable to the refrigerator at all. It was, therefore, prayed that the notification was liable to be quashed only to the extent that it included the refrigerator and the requirement of declaring MRP on the refrigerator. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by 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 SWM Act and the SWM (PC) Rules and it would be imperative that MRP has to be printed in terms of Rule 6 which has been referred to above. 8. The High Court has also made a reference to Rule 2(l) and more particularly, the Explanation to which we have referred to earlier. In our view the reliance by the High Court on Rule 2(l) is correct. Learned counsel tried to urge that every customer would like to open the package before finalising to purchase the refrigerator. He would at least get it tested and for that purpose the package would be destroyed. That may be so but it does not change the position as rightly observed by the High Court. 9. It was tried to be suggested that MRP would be different depending upon the area in which it is being sold. That may be so, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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