TaxTMI 
TaxTMI 
2016 (9) TMI 351
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....request a bill was issued for the same. Measurements were made in respect of Whisky and Brandy supplied to the complainant and the same revealed that it was in accord with the order placed. In respect of the beer purchased by the Senior Inspector, it was revealed that the accused had charged a sum of Rs. 85 /- instead of Rs. 55/-, which was the MRP printed on the bottle in terms of Section 18 of the Legal Metrology Act, 2009. According to the complainant, charging excess price than the declared maximum retail price on the package attracts an offence under Rule 18(2) of The Legal Metrology (Packaged Commodities) Rules, 2011 ("L.M.P.C Rules" for brevity) read with S 18 of the Legal Metrology Act 2009 ("LM Act" for brevity )and punishable under section 32 (2) of the L.M.P.C. Rules. The aforesaid proceedings are under challenge in this petition. 3.I have heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. 4.The learned counsel appearing for the petitioners would submit that M/s Hotel Savoy Bar is a hotel which was being run on the strength of a Foreign Liquor - 3 ( FL3) licence issued by the designated authority of the Department of E....
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.... 7.The allegation is that the petitioners have charged excess price over and above the declared maximum retail price on the package. This according to the complainant violates Rule 18 (2) of the LMPC Rules 2011 read with Section 18 of the L.M. Act and hence punishable under Rule 32 (2) of the LMPC Rules, 2011. It will be apposite to refer to the above provisions . 8.Section 18 of Act 1 of 2010 reads as follows :- "18. Declarations on pre-packaged commodities.-(l) No person shall manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed. (2) Any advertisement mentioning the retail sale price of a pre-packaged commodity shall contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed." 9. Here it is the admitted case of the prosecution that the Beer bottle contained all label declarations including the MRP which was Rs. 55/ - per unit. 10.Rule 18 (2) of the LMPC Rules, 201....
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....he package has also been defined. 14.After having understood the meaning and purport of the various terms made mention of in the rules relating to retail sale, the next question which arises for consideration is whether the serving of Indian Made Foreign Liquor in a Hotel Bar licenced by the Excise authorities in the State of Kerala will come within the definition of retail sale by a retail dealer and whether the act of selling the item over and above the retail sale price would attract the vice of Rule 18 (2) of LMPC Rules read with section 18 of the principal Act. 15.Admittedly, the 1st petitioner is a Bar Hotel of which the 2nd petitioner is the Managing Director. They have been conducting the Bar on the strength of an FL-3 licence issued by the Excise Department. A brief perusal of the terms of the FL3 licence as per the Foreign Liquor Rules will be instructive in this regard, The privilege as per the FL3 licence issued extends to the sale of foreign liquor for consumption within a room specifically approved for the purpose to residents in the Hotel or Boarding House for the use of those residents and that of their guests or to casual visitors partaking of meals. The FL3 ....
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....served to him during his stay in the hotel? It stands to reason that during such stay a well equipped hotel would have to furnish a number of amenities to render the customer's stay comfortable. In the supply of such amenities do the hotelier and his customer enter into several contracts every time an amenity is furnished? When a traveller, by plane or by steam-ship, purchases his passage-ticket, the transaction is one for his passage from one place to another. If, in the course of carrying out that transaction, the traveller is supplied with drinks or meals or cigarettes, no one would think that the transaction involves separate sales each time any of those things is supplied. The transaction is essentially one of carrying the passenger to his destination and if in performance of the contract of carriage something is supplied to him, such supply is only incidental to that service, no changing either the pattern or the nature of the contract. Similarly, when clothes are given for washing to a laundry, there is a transaction, which essentially involves work or service, and if the laundryman stitches a button to a garment, which has fallen off, there is no sale of the button or t....
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....tial even as per the express terms of the FL3 licence issued to the petitioners by the Excise Department. The bill prepared by the petitioner is one and indivisible, not being capable by approximation of being split up into one for food and the other for alcohol or for the amenities provided to the customer. The said Bill would be prepared after consideration of the costs of alcohol as well but that would include the cost of all the other amenities given to the customer. The value added services like the comforts of the restaurant such as climate conditioning, comfortable seating, snacks, service of bearer, toilet, drinking water, chilling of the alcohol etc., and also the meals, are part and parcel of service which is in reality the transaction between the parties. The licence issued to the petitioner, prohibits the petitioner from carrying out retail sale of alcohol to the customer for the purpose of consumption outside the premises. The customer is prohibited from even taking away the unfinished items from the hotel / restaurant as per the provisions of the licence. The customer cannot enter the hotel of the petitioner and make a purchase of a bottle of beer for consumption at h....
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.... discover separately the component of goods sold. This situation may obtain even in India with the throng of foreign tourists who want to be taken care of and pay allinclusively. This may happen in some fashionable restaurants where you cannot, as of right, remove from the table what is left over. In these cases the decision under review squarely applies........." 21. In The Federation of Hotels and Restaurants Association of India and Ors V Union of India AIR 2007 Delhi 137, the question was whether the charging of prices for mineral water in excess of MRP printed on the packaging, during the service of customers in hotels and restaurants would violate the Standards of Weights and Measures Act (60 of 1976) and also the Standards of Weights and Measures (Packaged Commodities) Rules. It was held by Vikramjit Sen. J as he then was, that the same will not violate the provisions of the Act as it did not constitute a sale or transfer of these commodities by the hotelier or restaurateur to his customers. 22. In R. Pasupathy V The Inspector, Legal Metrology, (Judgment dated 04.11.2009 in Crl.MC.No. 996 of 2009) this court had occasion to consider whether the sale in the restaurant o....