TaxTMI 
TaxTMI 
2009 (8) TMI 100
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.... 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. The contention of the respondents is that the label was not as per the SWM Act and SWM Rules. 2. The petitioner submits that the provisions of the SWM Act and the SWM Rules can apply only when there is a specific notification in respect of footwear or garments under Section 1(3) of the SWM Act. It is submitted that there is no such notification. Section 1(3) of the SWM Act reads as under :- "1(3). 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, (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 constr....
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....powered 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, (c) classes of undertakings, (d) classes of goods, (e) classes of weights and measures, or (f) classes of users of weights and measures. In other words what it implies is that the provisions of the Act may be made applicable by notification on one day and/or different dates may be fixed for different provisions of the Act to come into force for various areas, classes of undertakings, etc., as set out earlier. In the instant case the Notification dated 26th September, 1977 has brought into force the various provisions as set out therein viz. Sections 1, 2, 3 and 39 as also 83. Once those sections have come into force, there is no requirement that there must be a different notification specifying the different dates for different provisions of the Act to be brought into force for various areas, etc. The submissi....
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....g 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 different dates for enforcement of the Act for different areas, classes of undertakings, classes of goods, classes of weights and measures or classes of users of weights and measures. The legislative choice to use the word 'OR' after end of Section 1(3)(e) of the Act would clinchingly show that a notification appointing the date for the purpose of enforcing the provisions of the Act takes within its fold all other aspects of the matter. So to say, when once notification is issued bringing into provisions of the Act, there need not be separate notification with reference to the areas, classes of undertakings, classes goods etc. 10. The Government of India vide their notification No. G.S.R.620(E), dated 26-9-1977 appointed the said date as the date on which Sections 1 to 3, 28, 29, 31(b), 39, 48(2), 54, ....
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....een 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. Thereafter by the notification dated 1st April, 1980, Sections 76 and 77 came into force and by the notification dated 1st July, 1987 the entire enactment has been enforced. The effect of these Notifications is that full play must be given to the provisions of the Act including the definition clauses. If a commodity is covered by a definition clause or provisions of an Act, the statutory provision has to be complied with. Section 1(3) of the SWM Act does not require a goods specific or an area specific notification, once the provisions of the SWM Act are applicable and the commodity is regulated and covered by the SWM Act. It is not mandatory for the Central Government to issue specific notifications identifying the commodity, user, area, etc., to enforce the Act. A general notification without reference to ....
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....vant. 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 Court in the case of Whirlpool of India Limited v. Union of India and others - 2007 (218) E.L.T. 167 (S.C.) = (2007) 14 SCC 468 had considered the aforesaid definition of the term 'commodity in packaged form" with reference to refrigerators and a similar contention raised by the manufacturer/seller was rejected, inter alia, holding as under :- "5. It was not disputed before the High Court and also before us that the appellant manufacturer has to sell the refrigerators which are packed in polythene cover, thermocol, etc. and placed in hardboard cartons. In fact the appellant had so pleaded before the High Court in para 3 to which a reference has been made by the High Court. Once that position is clear, then the refrigerator clearly becomes a commodity in the packaged form. The use of the....
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....e 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) applies. (5) Where the Central Government has reason to believe that there is undue proliferation of weight, measure or number, in which any commodity is, or reasonably comparable commodities are, being-packed for sale, distribution or delivery and such undue proliferation impairs in the opinion of that Government, the reasonable ability of the consumer to make a comparative assessment of the prices after considering the net quantity or number of such commodity, that Government may direct the manufacturers and also the packers or distributors to sell, distribute or deliver such commodity in such standard quantities or number as' may be prescribed. (6) Whenever the retail price of a commodity in packaged form to which this Chapter applies is stated in a....
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....odity, 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 the petitioner made reference to Rule 2(l) of the SWM Rules and relying upon the judgments in the cases of Phillips India Ltd. v. Union of India, 2002 WLR 140; Pieco Electronics and Electricals Ltd. v. Union of India [Writ Petition No. 11966/1991, decided on 5th September, 2002]; Eureka Forbes Limited v. Union of India, 2003 (2) ALD 742 and decision of the Bombay High Court in Subash Arjandas Kataria (supra) submitted that the openable card board box in which the footwear was packed cannot be regarded as a pre-packed commodity under Rule 2(l) and therefore Rule 6 of SWM Rules is not applicable. The Rule 2(l) reads :- "Rule 2(l). 'pre-packed commodity' with its grammatical variations and cognate expressions, means a commodity or article or ar....
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....e 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." 18. The Punjab and Haryana High Court in M/s. Whirlpool of India Limited v. Union of India and another, 2001 (137) E.L.T. 42 (P & H) = 2001 (3) PLR 385 had referred to Rule 2(l) of SWM Rules and observed : "The illustration of an electric bulb as contained in the explanation is clearly indicative of the legislative intent. Admittedly, an electric bulb is merely wrapped in a sheet of corrugated paper. It can be taken out and tested. Every buyer does so, yet, it is treated as a pre-packed commodity. In our view, a Refrigerator is not different in any manner. It is undoubtedly true that a customer who goes to a dealer to buy a Refrigerator shall check it before he pays the price. He might even test it. For this purpose, the dea....
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....oes 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 that the object behind the provisions is not frustrated and rendered superfluous but promoted and protected. The Supreme Court in the case of M/s. India Photographic Company Ltd. v. H.D. Shourie, JT 1999 (5) 333 observed : "It is contended that sub-rule (2) of Rule 6 alone was applicable in the case because the goods in the form of Kodak films were being sold by the distributor and not by the manufacturer. It is further contended that sub-rule (1) of Rule 6 is applicable to the manufacturers alone. We are not satisfied with such submission. Accepting such a plea would result in frustrating the provisions of the 1986 Act and thereby encourage the retailers or distributors of foreign made goods to charge prices according to their conv....