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what is the true scope and correct purport of the expression “commodity in packaged form” under Section 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 1

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 1117 OF 2010

State of Maharashtra & Ors .... Appellant (s)

 Versus

Subhash Arjundas Kataria .... Respondent(s)

 WITH

 CIVIL APPEAL NOs. 1118, 1120, 1121, 1122 

 AND 1123 OF 2010

 WITH

 CRIMINAL APPEAL NO. 118 OF 2010

 J U D G M E N T 

P. Sathasivam, J.

1) The principle question which arises in these appeals is as 

to what is the true scope and correct purport of the expression 

"commodity in packaged form" under Section 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 

 1

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 pouch which is normally on display 

for the customers to identify for the purpose of purchase. It 

 2

was also explained that the package, therefore, is only a 

package for protection or safety of the article. The value of 

sun glasses whether inside the package or outside the package 

does not alter if the package is opened nor does it undergo a 

perceptive modification on the package being opened. The 

testing of the sunglasses by the customer is for the purpose of 

determining whether he should purchase the same 

considering various sizes, designs, colours, aesthetic value, 

makes and companies and after trying and ascertaining the 

suitability, quality etc. 

3) It is the grievance of the respondent that in spite of proper 

explanation, the Inspector/Appellant No. 2 seized the sun 

glasses for allegedly not declaring name and address of the 

manufacturer/month and year of manufacturing which is in 

violation of provisions of the Act and the Rules. It is the claim 

of the respondent that by force they were compelled to write a 

letter to the authorities for compounding the offence and 

directing them to pay Rs. 3,000/- as compounding fee by 

order dated 30.10.2003. 

 3

4) Aggrieved by the action of the appellant, the respondent 

preferred Writ Petition No. 120 of 2004, inter alia, for quashing 

of the seizure memo dated 17.10.2003 and also for the order 

dated 30.10.2003 for the payment of compounding fee. By 

order dated 05.05.2006, 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 

 4

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 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 contained therein, 

 such commodity shall be deemed, for the purposes of these 

 rules, to be a pre-packed commodity, for example, an electric 

 bulb or fluorescent tube is a pre-packed commodity, even 

 though the package containing it is required to be opened for 

 testing the commodity.

 Explanation II. ......"

 5

7) Considering the above definition, the High Court observed 

that the expression "pre-packaged commodity" would be 

applicable to:-

(i) commodities which are packed, and

(ii) the commodity packaged has a pre-determined value and

(iii) that value cannot be altered without the package sold 

being opened at the time of sale, or

(iv) the product undergoes a modification on being opened.

8) As rightly argued by Mr. Shekhar Naphade, learned senior 

counsel for the respondent, in the case of sun glasses, whether 

they come in a box or not, insofar as the retailer is concerned, 

at the time when they are being sold to the consumer, are not 

in packaged form. Even if we hold that they come in a 

packaged form, before they are sold to the consumer by 

removing them from the box, the value does not alter nor does 

the product undergo a perceptive modification and as such the 

provisions, particularly, under Section 2(b) of the Act are not 

applicable. Further, as rightly observed by the High Court, the 

explanation to the said Rule is also not attracted because the 

package is not opened for the purpose of testing as in the case 

 6

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 pre-

determined 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 petition filed by the respondent. We also agree with the 

 7

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. vs. 

Union of India and Ors. (2007) 14 SCC 468. 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 `refrigerator' is a "packaged commodity" or not. 

The appellant-Whirlpool was engaged in manufacturing 

refrigerators. The Central Government issued Notification No. 

9 of 2000 dated 01.03.2000 under Sections 4-A(1) and (2) of 

the Central Excise Act and specified the goods mentioned in 

 8

Column 3 of the said notification. Entry 48 pertains to the 

refrigerators whereby the refrigerators invited valuation under 

Section 4-A of the Central Excise Act with the abatement of 

40%. Sections 4-A(1) and (2) of the Central Excise Act require 

that any goods included in the notification shall be valued on 

the basis of the maximum retail price (for short "MRP") which 

is required to be printed on the packages of such goods. The 

five conditions for inclusion of the goods are:

 "(i) The goods should be excisable goods;

 (ii) They should be such as are sold in the package;

 (iii) There should be requirement in the Act or the Rules 

 made thereunder or any other law to declare the price of 

 such goods relating to their retail price on the package;

 (iv) The Central Government must have specified such 

 goods by notification in the Official Gazette;

 (v) The valuation of such goods would be as per the 

 declared retail sale price on the packages less the amount of 

 abatement."

 9

12) The appellant felt aggrieved by the fact that the 

refrigerators were covered and included in the aforementioned 

Notification dated 01.03.2000 as, according to the appellant, 

the refrigerator is not such 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 01.03.2000 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 

 10

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 inspection of the refrigerator and at least for that 

purpose the package has to be opened and, therefore, there 

 11

would be no question of the refrigerator being included in the 

Act or the Rules made thereunder. Rejecting the said 

submission as incorrect, this Court concluded 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 term "or 

 otherwise" in the definition would suggest that a commodity 

 if packed in any manner in units suitable for sale, whether 

 wholesale or retail, becomes a "commodity in packed form..."

15) After adverting to Rule 2(l) "pre-packed commodity" and 

Explanation I, their Lordships have held that refrigerator is 

covered under the term "pre-packed commodity" and 

concluded that:

 "6. ....Even if the package of the refrigerator is required to be 

 opened for testing, even then the refrigerator would continue to 

 be a "pre-packed commodity". There are various types of 

 packages defined under the Rules and ultimately Rule 3 

 specifically suggests that the provisions of Chapter II would 

 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 

 12

 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, 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.

 13

17) Learned senior counsel appearing for the respondent 

vehemently submitted that the ratio of the judgment in 

Whirlpool (supra) is not at all applicable to these cases, 

firstly, because the issue in that case was in context of Central 

Excise Act and, secondly, because none of the aspects stated 

have been taken into consideration by this Court in the matter 

of Whirlpool (supra). It is also pointed out that the judgment 

is sub silentio because the provisions of the Act, specially the 

provisions of Section 2(v) of the Act, have not been taken into 

consideration in the said case. In the context of sub silentio 

reference is made to the judgment of this Court in Municipal 

Corporation of Delhi vs. Gurnam Kaur, (1989) 1 SCC 101, 

which according to the counsel for the respondent, is that a 

sub silentio judgment does not have a binding precedent. By 

pointing out the same, the counsel for the respondent prayed 

that the case of Whirlpool (supra) requires reconsideration 

and, as a result, the present matter also would be required to 

be considered by a larger Bench. 

18) Though it was pointed out that the decision in Whirlpool 

(supra) was made in the context of the Central Excise Act, we 

 14

have already extracted the question which fell for 

consideration, relevant provisions from the Act and the Rules, 

discussion as to the applicability, and the ultimate conclusion 

in para 9, namely, "whatever be the situation, it is clear that a 

refrigerator is a "packaged commodity" and thus is covered 

under the Act and the Rules." In view of the same, it cannot 

be claimed that the judgment in Whirlpool (supra) has no 

bearing on the issues in these appeals. Inasmuch as the said 

decision was rendered by a bench of three Hon'ble Judges with 

reference to the very same Act and Rules, we are of the view 

that the issue raised in all these appeals have to be heard by a 

larger Bench.

19) Accordingly, we direct the Registry to place all these 

appeals before Hon'ble the Chief Justice of India for listing 

before a larger Bench. 

 ...........................................

 ......J. 

 (P. SATHASIVAM) 

 ..............................................J. 

 (H.L. GOKHALE) 

 15

NEW DELHI;

AUGUST 26, 2011. 

 16

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 1119 OF 2010

The State of Maharashtra & Ors .... Appellant (s)

 Versus

Raj Marketing & Anr. .... Respondent(s)

 J U D G M E N T 

P. Sathasivam, J.

1) This appeal by State of Maharashtra is directed against the 

judgment and order dated 08.12.2006 passed by the High 

Court of Judicature at Bombay in Writ Petition No. 2982 of 

2006 whereby the High Court allowed the writ petition of the 

Ist respondent herein. 

 17

2) The issue involved in this appeal is whether Candy man, 

Minto-Fresh, Kitchens of India, Badam Halwa and Ashirvaad 

Atta etc. can be considered as a "wholesale package" within 

the definition of the expression "wholesale package" under 

Rule 2(x) of the Standards of Weights and Measures (Packaged 

Commodities) Rules, 1977 (hereinafter referred to as "the 

Rules"). 

3) Brief facts:

a) The respondent is a firm carrying on the business of 

buying and selling various products and they used to store 

these products in their godown at Gali No.8, Senior Tyre 

Compound, N.S.S. Road, Narayan Nagar, Ghatkopar (W) 

Mumbai.

b) On 31.10.2006, the second appellant/Inspector of Legal 

Metrology, Mumbai visited the first respondent's godown and 

seized various packages of packed commodities such as Candy 

man, Minto-Fresh, Kitchens of India, Badam Halwa and 

Ashirvaad Atta etc. vide seizure memo bearing Nos. 0114769 

and 0114770 dated 31.10.2006. The reason for seizure, 

 18

according to him, is that on the wholesale packets, the details 

regarding the name and addresses of the manufacturer, cost, 

month, year etc. has not been declared and also the retail sale 

price was not mentioned which is in violation of the Rules. 

c) A show cause notice dated 06.11.2006 has been issued 

by the appellant to the respondent for the violation of 

Section/Rule 33 and 39 read with Rule 23(1) and 6 of the 

Rules. It was mentioned in the said notice that the offence is 

compoundable as per Section 73 of the Standards of Weights 

and Measures Act, 1976 and Section 65 of the Standards of 

Weights and Measures (Enforcement) Act, 1985. 

d) On 18.11.2006, the respondents, vide their letter, replied 

to the notice dated 06.11.2006. 

e) On 28.11.2006, the respondents filed Writ Petition being 

W.P. No. 2982 of 2006, inter alia, for quashing the seizure 

memo dated 31.10.2006 and notice dated 06.11.2006. 

4) The High Court, by impugned order dated 08.12.2006 

allowed the writ petition by holding that the packages 

containing Candy man, Minto-Fresh, Kitchens of India, Badam 

Halwa and Ashirvaad Atta are not wholesale package within 

 19

the definition of the expression "wholesale package" under 

Rule 2(x) of the Rules. 

5) Questioning the said order of the High Court, the State 

filed the above appeal by way of special leave. 

 20

6) Heard Mr. Chinmoy Khaladkar, learned counsel for the 

appellant-State and Mr. Ravinder Narain for respondent No.1.

7) Rule 2(x) of the Rules define "wholesale package" to 

mean:

 "(x) "wholesale package" means a package containing-

 (i) a number of retail packages, where such first mentioned 

 package is intended for sale, distribution or delivery to a 

 intermediary and is not intended for sale direct to a single 

 consumer; or

 (ii) a commodity sold to an intermediary in bulk to enable 

 such intermediary to sell, distribute or deliver such 

 commodity to the consumer in smaller quantities; or 

 (iii) packages containing ten or more than ten retail 

 packages provided that the retail packages are labeled as 

 required under the rules."

8) Rule 29 of the Rules read as under:

 "29. Declaration to be made on every wholesale package.- 

 Every wholesale package shall bear thereon a legible, 

 definite, plain and conspicuous declaration as to,-

 (a) the name and address of the manufacturer or where 

 the manufacturer is not the packer, of the packer;

 (b) the identity of the commodity contained in the 

 package; and 

 (c) the total number of retail packages contained in such 

 wholesale package or the net quantity in terms of standard 

 units of weights, measures or number of the commodity 

 contained in wholesale package:

 21

 Provided that nothing in this rule shall apply in relation to a 

 wholesale package if a declaration similar to the declaration 

 specified in this rule, is required to be made on such 

 wholesale packages by or under any other law for the time 

 being in force."

9) In order to attract violation of the Rules referred above, 

the package seized must fall within the expression "wholesale 

package". A package used merely for protection during 

conveyance or safety would not be pre-packed commodity for 

the purpose of the Act and the Rules. As rightly observed by 

the High Court that for the package to be treated as a 

wholesale package, the package must not be a secondary 

package. In that event, we have to find out whether the 

secondary package is only for safety, convenience or the like. 

As demonstrated before the High Court, the counsel appearing 

for the Ist respondent placed all the above-mentioned products 

before us i.e. both the wholesale package as well as the retail 

package. The Department's only contention was that the 

secondary package in which the wholesale package was 

packed does not contain the said information. In the light of 

the provisions which we have referred above and on 

verification of the products which were shown to us, we are of 

 22

the view that the secondary outer packing for transportation 

or for safety of the goods being transported or delivered cannot 

be described as a wholesale package. 

 23

10) On going through the statutory provisions which we have 

adverted to in the earlier paras and on verification of the 

products which were shown to us during the course of 

argument, we fully agree with the conclusion arrived at by the 

High Court. Consequently, the appeal fails and the same is 

dismissed with no order as to costs. 

 .................................................J. 

 (P. SATHASIVAM) 

 ..............................................J. 

 (H.L. GOKHALE) 

NEW DELHI;

AUGUST 26, 2011. 

 24

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