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TMI Blog2009 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ocates, for the Petitioner. S/Shri Dalip Mehra, Rajiv Ranjan Mishra for UOI and Ms. Zubeda Begum, Advocates, for the Respondent. [Order]. - The petitioner, M/s. Reebok India Company has filed the present Writ Petition for declaration that the provisions of Standards of Weights and Measures Act, 1997 (sic) (hereinafter referred to as SWM Act, for short) and Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as SWM Rules, for short) are not applicable to them. The petitioner has also prayed for direction to release goods seized for the alleged violation of SWM Act and SWM Rules vide seizure memo dated 17th July, 2006. By the aforesaid seizure memo, the respondent no. 3 Inspector of Legal Metrology, Government of NCT of Delhi had seized a pair of footwear with the label which did not mention that the maximum retail price was inclusive of all taxes. By another notice the petitioner was asked to inform whether they would like the offence of incorrect labeling to be compounded under Section 65 of the SWM Act. The said footwear was imported by the petitioner from Vietnam and was being sold in one of the shops of the petitioner in Delhi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not necessary that there should be a specific notification in respect of footwear or garments under Section 1(3) of the SWM Act before it can be enforced or a separate notification specifying the specific area in which the SWM Act will be enforced. 4. The Bombay High Court in the case of Subash Arjandas Kataria v. State of Maharashtra and Others [Writ Petition No. 120/2004] AIR 2006 Bom 293 has observed : "5. We have heard learned Counsel for the parties. It may be pointed out that by Notification dated 26th September, 1977 the Central Government under Section 3(1)(sic) of the Act appointed 26th September, 1977 as the appointed date for enforcing the provisions of sections mentioned therein particularly Sections 1, 2 and 3 and Sections 39 and 83. Under Section 83 of the Act, the Central Government is empowered to make Rules in respect of packaged commodities. Accordingly, Rules have been made dated 26th September, 1977 covering all packaged commodities. Section 1(3) of the Act sets out that it shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different (a) provisions of this Act, (b) areas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 either wholly or partly applicable to the entire territory or part of the territory. Such power may also include power to apply the enactment in a phased manner with reference to territorial areas, persons covered and subject matter with which the legislation deals. If legislation confers power on Government to bring the law into force by issuing an order notifying the date when the Act shall come into force, and when such notification is issued bringing all the provisions of the Act into force, nothing more is required. The entire law/enactment is enforceable. This situation remains unalterable notwithstanding the fact that the provision conferring power on executive Government gives discretion to appoint different dates for bringing into force different provisions of the Act or persons/subject matters to which such Act applies. 9. A perusal of Sub-section (3) of Section 1 of the Act as above would show that Central Government is given power to bring into force the provisions of the Act. It also confers power to appoint d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Section 1(3) of the Act." (emphasis supplied) 6. The ratio expressed in the decisions of Subash Kataria (supra) and TVS Electronics (supra) is acceptable in view of the language of Section 1(3) of the SWM Act. Section 1(3) gives option to the Government to appoint different dates for enforcement of the SWM Act in respect of the provisions, the area to which the Act will apply, class of goods, weights and measures, class of users, etc. It is an empowering provision which entitles the Central Government to partly enforce the provisions of the Act in relation to sections, users, area, goods and weights. It is not couched in a negative language which requires specific notification for class of goods and bars general notification for enforcement of the SWM Act. The Central Government has been empowered to enforce the SWM Act partially or in a limited or phased manner, in relation to sections, different parts of the country, class of goods, undertakings, weights and measures and users of weights and measures. As a result of the Notification dated 28th September, 1977, Sections 1, 2, 3, 28, 29, 37(b), 39 48(2), 54, 63, 67, 69, 70-74, 78 and 83 had come into force. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale and only when the unit is not suitable for sale unless packaged, the goods are "commodity in packaged form". "Commodity in packaged form" means any commodity which is packed. The definition elucidates that the packaging can be in any form i.e. in a bottle, tin container, wrapper or otherwise. All forms and types of packaging are covered. The intention of the legislature is to expand the scope and cover any and every type of packaging. The intention is not to restrict the definition of the term "commodity in packaged form" to specific type of packing. Use of the word "otherwise" in the end, expands and widens the scope and does not restrict the definition to a particular type of packaging. Reason and cause why packing is done or whether packing is essential and required for sale is irrelevant. No link between the commodity or unit by reference to packing is required. The last portion of the definition clause states that the commodities may be packed in units which are suitable for sale whether in wholesale or in retail trade. Thus a packed commodity in unit for sale whether for retail or wholesale trade is covered by the definition "commodity in packaged form". 11. The Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number as may be prescribed. (2) Every package to which this Part applies shall bear thereon the name of the manufacturer and also of the packer or distributor. (3) Where the package of a commodity to which this Part applies or the label thereon bears a representation as to the number of servings, of the commodity contained therein, such package or label shall also bear a statement as to the net quantity (in terms of weight, measure or number) of each such serving. (4) The statement on a package or "label as to the net weight, measure or number of the contents thereof shall not include any expression which tends to qualify such weight, measure or number : Provided that the Central Government may, by rules, specify the commodities, the weight or measure of which is likely to increase or decrease beyond the prescribed tolerance limits by reason of climatic variations; and it shall be lawful for the manufacturer or packer of the commodity so specified to qualify the statement as to the net content of such commodity by the use of the words "when packed". Explanation. - The words "when packed" shall not be used in any case except a case to which the proviso to sub-section (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be rejected. Even a single or an individual item amounts to sale by measure or by count. Measure or count does not require more than one item. A single item or single commodity when packed will be coved by Section 39 as the said commodity will be sold by count or measure. It is not necessary that the count should be more than one and not one. There is no such requirement in Section 39. Once Section 39 of the SWM Act applies then the provisions and stipulations therein have to be complied with. Section 39(1) of the SWM Act prohibits manufacturing, packaging or selling of any commodity in packed form unless the package bears the label to identify the commodity in it, net quantity in terms of standards of weights and measures in the packaged commodity, adequate numbers of commodities in the package, unit sale price and the like. 15. Similar view has been taken by the Andhra Pradesh High Court in the case of TVS Electronics Ltd. (supra) and by the Karnataka High Court in Reebok India Company thr. Executive Director (Finance and Operations/Chief Financial Officer) v. Union of India [Writ Petition Nos. 17373-17374/2006, decided on 31st January, 2009] 16. Learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to the packages intended for "retail sale" and the expression "package" would be construed accordingly. 7. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under :- "20. Thus an electronic printer which is packed (may be for the purpose of insulation and protection from damage) in the absence of customer, after it is removed it undergoes perceptible modification, and therefore, it falls within the category of pre-packed commodity Secondly, as admitted in the affidavit filed by second petitioner, first petitioner imports electronic printers, electronic parts and markets the printers and printer parts after assembling them in the facility of Tamil Nadu. It is certainly marketed in different parts of the country in course of inter-State trade or commerce and therefore, all provisions of the Act and Package Rules would apply. Merely because only one unit is packed in one package, the same does not take electronic printers 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." 21. The provisions of SWM Act and the SWM Rules have been enacted for the benefit of and to safeguard interest of the consumers. They have a salutary objective and purpose behind them. The SWM Act and the SWM Rules have to be interpreted in a manner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred. Referring to definition of "pre packed commodity" in Rule 2(l), it was observed that Explanation (1) contains an illustration and the definition should be given a meaningful interpretation. It was held :- "13. The definition of 'prepacked commodity' in Rule 2(l) is exhaustive while the explanation I also contains illustration, when read in the context of the definition 'commodity in prepackaged form in Section 2(b) of the Act. The definition of the phrase 'commodity in the packaged form' in Section 2(b) of the Act though not exhaustive, cannot be read in isolation, but with the legislative history of the Act. Keeping in mind the purport and object of the Act and what it seeks to subserve, the definition of the phrase in Rule 2(1) must be given a meaningful application, with a view to make the Act workable. The consequences are that as long as the commodity in a prepackaged form, is a package, and the commodity contained therein has a predetermined value, which cannot be altered on being opened or on undergoing a perceptible modification. In the circumstances, the definition in Rule 2(l) a subordinate legislation, cannot be said to override the principal legislative de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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