TaxTMI 
TaxTMI 
2011 (8) TMI 922
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....n 2(b) of the Standards of Weights and Measures Act, 1976 (in short 'the Act'). In Civil Appeal No. 1117 of 2010, the specific question is whether the sun glasses can be considered "pre-packed commodity" under Rule 2(l) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (in short 'the Rules'). In the connected appeals, the product includes Titan watches, fixed wireless phones, sun glasses, electrical goods, home appliances, consumer electronics and Samsung Microwave Oven. The State of Maharashtra is the appellant in all these appeals 2. For convenience, let us briefly state the facts in Civil Appeal No. 1117 of 2010. According to the respondent, he is engaged in the business of trading in sun glasses and has a counter on commission basis at Globus Stores, Bandra. On 17-10-2003, the Inspector of Legal Metrology/Appellant No. 2 herein visited the store and seized five sun glasses belonging to the respondent and issued a seizure memo. At the time of search, it was explained to him that the sun glasses delivered to them were in polythene bags and some in individual openable pouches. According to them, sometimes, at the time of delivery, they are put in a ....
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....f "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 after comparing, trying it out for size and after checking its aesthetic value, the quality of glass and vision, looks etc. and therefore, the sun glasses can never be and are not sold in packaged condition. 6. We are concerned about Section 2(b) of the Act and 2(l) of the Rules which read as under :- "2(b) "Commodity in packaged form" means commodity packaged, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale, whether wholesale or retail." "2(l) "Pre-packed commodity", means a commodity, which without the purchaser being present, is placed in a package of whatever nature, whether sealed or opened, so that the commodity contained therein has a pre-determined value and includes those commodities which could be taken out of the package for testing or examining or inspecting the commodity; Explanation I - Where, by reason merely of the opening of a package no alteration is caused to the value, quantity, nature or characteristic of the commodity ....
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....bility, 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 petition filed by the respondent. We also agree with the similar arguments advanced relating to other products mentioned above. 10. Learned counsel appearing for the appellant-State submitted that the very same Rules fell for interpretation before this Court in the case of Whirlpool of India Ltd. v. Union of India and Ors., (2007) 14 SCC 468 = 2007 (218) E.L.T. 167 (S.C.). Heavily relying on the said decision, the learned counsel submitted that sun glasses are "pre-packed commodity" within the meaning of the Act and the Rules. He also submitted that the other products also would come within the above mentioned definition and by applying the ratio in that decision prayed for setting aside the impugned order of the High Court. 11. In order to consider the stand of the State, let us consider the factual position and the ratio laid down in Whirlpool (supra). The short question in that matter was as to whether 're....
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....gerator 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. 13. The respondent authorities, however, maintained that the refrigerator was in fact sold in a package of polythene cover, thermocol, hardboard cartons, etc. and thus it falls in the category of "pre-packed commodity". On that basis it was contended that since every packaged commodity was included in the Act and the Rules made thereunder, there can be no escape from printing MRP on the package. The High Court rejected the contention and dismissed the petition filed by the appellant. 14. It was vehemently contended before a three-Judge Bench by the counsel for the appellant that a 'refrigerator' is not sold in a "packaged form". It was further contended that even if it is sold in the packaged form, when it is displayed by the dealers, it is not in the packaged form and the customers can take the ins....
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....ke 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, however, that cannot absolve the manufacturer from displaying the price i.e. MRP on the package in which the refrigerator is packed. Whatever be the situation, it is clear that a refrigerator is a "packaged commodity" and thus is covered under the SWM Act and the SWM (PC) Rules and, therefore, the Notification dated 1-3-2000 cannot be faulted on that ground...." 16. By heavily relying on the above dictum with reference to the very same provisions by this Court in the Whirlpool (supra), the appellant-State submitted that in view of substantive definition of the main section read with the Rules, the sun glasses are "pre-packed commodity" within the meaning of the Act and the Rules thereof. The appellant-State also submitted that similar analogy is to be applied for other products also. 17. Learned se....