Dismissed

Mr. G. Ramesh Kumar v. Union of India

Telangana HC13 Sept 2023WA/896/2023

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a writ appeal challenging the validity of proceedings against a tyre dealer. The court held that government circulars clarifying the classification of tyres as non-packaged commodities do not have statutory binding force on state authorities under the Standards of Weights and Measures Act, 1976.

What did the court decide?

The writ appeal was dismissed, confirming the order that the proceedings were valid and the appeal against them fails.

Mr. G. Ramesh Kumar Vs Union of India — Consumer Protection | Telangana HC (2023)

¶1

[3377 ]

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶3

WEDNESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE

¶4

PRESENT

¶5

THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE AND

¶6

THE HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR

¶7

WRIT APPEAL NO: 896 OF 2023

¶8

Writ Appeal under clause 15 of the Letters Patent Preferred Against The Order dated 28-07-2023, in W.P.No. 3482 of 2011 on the file of the High Court.

¶9

Between:

¶10

ltlr. G. Ramesh Kumar, S/o Sudhakar Rao Aged about 43 years Proprietor, M/s. Manikanta Tyres, Shop No.28-1-74 Coltex Area, Bellampalli - 5O4 251 Adilabad District

¶11

...APPELLANT

¶12

AND

¶13

1 Union of lndia, Through its Secretary of Consumer Affairs, 461-A, Krishi Bhawan New Delhi -'l'10 001

¶14

Government of Andhra Pradesh Department of Legal Metrology Through lnspector, Legal Metrology Sirpur Kagaznagar, Adilabad District PlN. 504 296 (A.P.)

¶15

Mr. B. Raveender, The lnspector Legal Metrology, Weights and Measures Sirpur Kagaznagar Adilabad District - 5O4 296

¶16

The State of Telangana, Department of Legal Metrology through Inspector, Legal Metrology, Sirpur Kagaznagar, Adilabad District PlN. 5O4 296

¶17

(Respondent No.2 is not necessary party in Writ Appeal)

¶18

...RESPONDENTS

¶19

lA NO: 1 OF 2023

¶20

Petition under Section ttf CpC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay

¶21

.*.

¶22

the operation of the O,der dated 2810712023 of the Learrred Sirgle .,udge passed in W.P.No.34B2 of 2011, including the impugned Panclrnama dated 2910112O11 together with the imprgned Notice bearing No. 159/PC/010-1^'1 cat€d 0310212011 issued by the Responrlent No.3 herern.

¶23

Counsel for the Appe lant : SRI C.R.SRIDHARAN, Senic,r Counr;il representing SRI G.V.S.GANESH

¶24

Counsel for the Respcndent No.1: SRI GADI PRAVEEN KUM,qFl (Dy. SOLICITOR GEhIERAT-^()F INDIA)

¶25

Counsel for the Respondent No.2&3 : GP FOR CIVIL StJPPLIESi

¶26

Counsel for the Respondent No.4 : SRI R.S.R.S.SARMI\

¶27

The Court made the lollowing: ORDER

¶28

{..

¶29

TI{E HON'BLE THE CIIIEI] JUSI'ICE AT,oK ARADITE ANI) THB HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR WRI't APPEAL No.896 of 2023

¶30

JUDGMENI': (per the I{on'ble the ChielJustice Alok Aradhe)

¶31

Mr. C.R. Sridharan, learned Senior Counsel represents

¶32

Mr. G.V.S. Ganesh, learned counsel for the appellant.

¶33

This intra couft appeal takes an exception to order dated 28.07.2023 passed by the learned Single Judge by which Writ Petition No.3482 of 201I preferred by the appellant has been dismissed with liberty to him to take all available pleas before the fbrum where the proceeding is pending. In this order, thc parties shall be hereinafter referred to as per their rankings before the learned Single Judge.

¶34

The facts giving rise for filing of this appeal briefly stated are that the petitioner is a dealer of automobile tyres and tubes. The^premises of the^petitioner were^{inspected by the} lnspector, Legal Metrology, Weights and Measures Department on 29.01.2011 and in^{the presence} ol^panchus, a panchanama was 'prepared. Thereafter, a notice dated

¶35

c.l t. NvsK. J 2 ll \ \o 8!6 of 2023

¶36

30.01.2011 we s scrved on the petitioner by which ht: was informed that he has contravened Section 39/13 cf the Standards of^'ileights and Measures Act, 1')76 (hcreinafter referred to as'the 1976 Act') and Rule 23(l) of tht: fltandards of Weights ard Measures^(Packaged Cornrnoditie;) Rules, I 977 (hereinr ftcr ret'erred to as 'the 1977 Ruk:s'). The petitioner was lurther inlbrrned that the afc,resairl act is arr offence punishable under Section 63151 of tlre 197( Act and Rule 39 of thc 1977 Rules. The petitio:rer \vas turther informed that the said oll'ence is compoundable undt:r Siectiorr 73165 of the l!t76 Act in case he wishes t1r get the oflence compounded instead of being tried in the Court ,tl' la',v. The petitioner war therefore apprised that he rnal do so lry paying the compoun<ling fee within a period of ten (10) drrys from the date of receilrt of the notice. The petitioner file,I a cletailed reply on I 1.0 ].201 I to thc albresaid notice.

¶37

The pe itioner thercafter filed Writ Petition l.lo.-t482 o1' 201 I orr 14.02.201I in which validity of the piLnc ranama

¶38

¶39

(r & Nvsti.., w.A No 896 of 2023

¶40

¶41

drawn on 29.01 .201I and the noticc dated 30.01.201I was assailed.

¶42

The leamed Single Judge by an order dated 28.07.2023 inter olia held that merely because Section 102(3) of Cr.P.C. and Section 29 ofthe 1976 Act have been breached. the same does not render the proceeding void. It rvas held that the issue relating to breach of Section 102(3) of Cr.P.C. can be raised in the trial proceeding. It was further held that the seized tyres do not fall within the expression of 'commodity in packagcd form' as defined under Section 2(b) of the 1976 Act. The learned Single Judge therefore declined to interfere with the matter. However, the petitioner was^granted liberty to raise all available pleas before the Court concemed where the case has becn liled.

¶43

In the aforesaid factual background, this intra court appeal arises for our consideration.

¶44

Learned Senior Counsel for the^petitioner at the outset has invited the attention ofrh( Court to communications dated

¶45

CJ [: NvSli. J 4 v.A \o.a!6 of2023

¶46

01.05.1991 and l6.l1.1992 issucd by Deputy [)ircctor of Ministry of Fcod and Civil Supplies and has conterrdeC that the Governmerrt ol'India has advised the Controlle:s of Legal Metrology of ;rll Statcs to not to treat the tyr,-:s w11p1r".1 *i,1, foil as pre-pa;kaged cornrnodity under the 1976 ,,\ct. It is further submit ed that the afbresaid communi<;ations issued by the Deputy Dilector ol-Ministry of Food and^(livil Slurrplies are binding on rrll the authoritics. In suppcft o,'af()resaid submission, rt,liance has been placed on decision or'Hon'ble Supreme Cot r1 in Union of India and othcrs r'. {rviva Industrics India Limitcd and otherst. lt is therelbr,: r;ontended that the proceeding initiated against the petitic,ner irl r oic[.

¶47

[t is further submitted that the allegation nraCc by the petitioner in rerply to the notice dated 30.01.20 ll that the panchanarna s manipulated has not been denied. lt. is further submitted thiLt evcn thclugh the Officer, who ir.spec-ed the prcrnises of t're petitioner, has bcen irnplead,:d in ltis personal

¶48

I 120141^{3 SuprcnrclourtCascsI 59}

¶49

CJ & NVS(, J -5 W.A No a96 o12023

¶50

1,-

¶51

capacity, yet the averments made in the Writ Petition have not been denied in the counter. Therefore, in the absence of any denial, the averments rnade in the writ petition shall be taken to be adrnitted. tt is also submitted that the mandate contained in Section 29 of the Act and Section 102 of Cr.P.C. has been violated.

¶52

We have considered the submissions made by the learned Senior Counsel for the petitioner and have perused the record.

¶53

Hon'ble Supreme Court in Arviva Industries India Limited (supra) while taking note of previous dccision rendered in the case of Commissioner of Customs v. Indian Oil

¶54

Corporation Limitcd2 has culled out the following^principles in para 4 ofthe order.

¶55

(l) Atthough a circular is not binding on a court or an^{assessee, i1 is} not open to the Revenue to raise a contention^{thalis contraryto a} binding circular by the Board. When^{a circularremains in} operation, the Revenue is^{bound by it and cannot be allowedto}

¶56

'^{(zooa) I scc ast}

¶57

CJ i. \VSK,,.l .: A No ar)6 of 2023

¶58

¶59

rlcad that it is not valid nor tlmt it is contr,rry to tlle tem$ of thc

¶60

rtatutc-

¶61

(2) Despitc the decision of this Court, the I)epartnicnt camot be pennitted to take a stand contrary to the instructior s issued by the Board.

¶62

(3) A show-causc noticc and dcmand contrary to rhc existing circulars ofthc Board arc ab initio bad.

¶63

(4) It is not opcn to the I{evcnue to advance irn argunrcnt or filc an appeal contrary to the circulars.

¶64

Thc afor:said decision is an authority fbl the )r'rp()sition that the circuliLrs issued under Section ll9 of the Inconre Tax Act, l96i and Section 37-B ol'tl.re Ccntral I xcise ,ttct 1944 are binding on the revenuc.

¶65

I 1. The aforesaid well settled legal position c anrrot be disputed.

¶66

In the lrackdrop ol- thc aloresaid prirrcilrles, wrl rray advert to the lacts of the case in hand. The comrnrinic:ations dated 01.05.11)91 and 16.11.1992 are extractrd beloiv :br the facility ofreference.

¶67

No.wM- I 0(2)/91 . Govcmmcnt oilndia Ministry oI Food and Civil Supplics (Dcparlment ol ('ivil Supplies) I l-A, Jarn I'lagirr llouse, New .)clhi I l00l 1. l)atedtlle lMrv. 199i.

¶68

¶69

CJ & NVSK, J W.A.No.A96 of 2023

.---'-7

Y,/ 'i

-lo

The Controllers of t,egal Metrology, All Srares/UTs.

¶75

Subject: Applicability of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 on tyre, tube and flap tied together by polythenc strips - clarifi cation - regarding.

¶76

Sir,

¶77

I am directed to enclose a photograph of a tyre with tube & flaps tied with three thin polyhene strips. Prima facie the arrangement shown ilt the photo may not be treated as a 'pre-packed commodity' within the meaning of rule 2(l) of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977. You may Iike to advise the field staffin your state suitably in this matter.

¶78

Yours faithfully, sd/-

Encl: I)hotograph

No.WM-10(2)/91.

Govemment of India

Ministry of Civil Supplies, Consurncr

¶83

Aflairs and Public Distribution.

¶84

12-A, Jam Nagar House, New Delhi I l00l l.

¶85

'lo

¶86

Dated: l6 November, I 992.

¶87

The Controllers of Legal Metrology,

¶88

All States/t-l'fs.

¶89

Subject: Applicability of the Standards of Weights &

¶90

Measures (Packaged Commodities) Rules, 1977 on tyres, tubes and flap tied together by poll'thene strips -

¶91

clarification - regarding.

¶92

Sir,

¶93

I am directed to invite your attention to this Ministry's letter of even number dated l" May, l99l clarilying the^position that a tyre with tube and flap tied with three thin pol).thene strips may not be treated as a^prepacked commodity^within the meaning ol rule 2(l ) of the Standards of Weights & Measures^(Packaged Comnrodities) Rules, 1977.

¶94

It is brought to our notice that in addition to the three thin^pol)4hene strips, some of thc tyre manufacturers are^also tieing small^gunny strip indicating^somecode or marking regarding destination to facilitate transpoders for handling these tlres. A photograph ofa tyre tied with gunny strip is enclosed.

¶95

The case rvas re-examined and our opinion use of such additional strip is not changing the situation as such it may not bc treated as "Pre-packed Commodity". You may like to advise the field staff in your state suitably in this matter.

Yours laithlilly,

sd/-

DEPU I'Y DIRIICIOR

Frorn a rerusal ol' thc aforesaid commun icatiorrs. it is evident that tlrey have not bccn issued in cxercis,: cf any statutory pro'zision under the 1976 Ac'. In adr1ition, cornmunication dated 0 I .05. I 99 I refers to "photo11riph" of a tyre with tube & flaps ticd with threc thin polythene s,rips. The aforesaid corn inunicatiorl states lhat printn fc'cie arrangenenl showed in thc photo lnay not bc a pre-packed r;onrrrrodity. Whether the sid arrallgcment was in existen,:e in the shop of thc petitioner lt the tirne of inspection is a question ol'Iact. In addition, it is pertinent to rlote that the alirresaid cornmunication appcars to be the opinion of :h: I)eputy Director of Ministry of Food and Civil Suppl:es. Sinrila,ly, the communicaticn datcd 16.11.1992 has not beerr iss.red in exercise of any statutory powel under the 1976 Acrt. The Deputy Director of Ministry of Civil SuJrplies, Cotsumer Alfairs and Prblic Distribution has recorded his opiniorr that a tyre with tubr: and flap tied within three thin poh,thenl strips may not be treated as a ltre-packed cornmodity. Tht: aloresaid communications which have no statutory sanct io r iLnd are

¶101

CJ & NVSK, J W.A.No.a96 of 2o23

opinions expressed by the Deputy Director oannot be said to be binding on the authorities under the 1976 Act. Therefore, the contention that the proceeding initiated against the petitioner is void ab initio does not deserve acceptance.

¶106

The petitioner has been given the notice of the proceeding. He has furlher beer.r apprised that he has the option to get the same compounded or he may choose to face the trial. The matter could not proceed fufther on account of an interim order which was granted on i5.02.2011. In view of aforesaid conclusiorl that the proceeding initiated against the^petitioner is not void ab initio, in our considered opinion, it will be open for the petitioner to raise all contentions which are available to him in law before the forum where the^proceeding is pending. Needless to state that the authority before whom such contentions are raised, he shall deal with the same without being influenced by the observations^made either in the^order of the learned Single Judge or in this order. It is^equally clarified that the prima facie findings recorded in this order have only been made for the purpose of deciding this appeal.

¶107

]J & \VSX. J W A Nr a96 oI2023

¶108

¶109

¶110

For the afbre-mentioned reasons, we do not lind any

¶111

ground to differ with the view taken by the learnecl Single Judge in tlre orrler dated28.07.2023 in Writ pt:tition 1.,1o.34g2 of20ll

¶112

In the resrrh, the appeal fails and is hereb.', disnrisrse<1.

¶113

Miscellaneous applications. if any pendrng, shirll stand

¶114

closed. There slrall be no ordcr as [o costs.

¶115

i;D/ M. MANJULA DI:PUTY REGISTRAR

¶116

,TRUE COPY// s^-c-il N OFFICER

¶117

To, '1 . One CC to SRI G.V.S.GANESH. Advocate. [OPUC] 2. One CC to SRI GADI PRAVEEN KUMAR, (Dy. SOLICIT{)FI GENERAL OF INDIA), High Clurt for the State of Telangana at Hvderat,a<|. [()PUC 3. Two CCs to thc GP for Civil Supplies, High Court for the S|rte Of Te angana at Hyderabad.^'OUTI

¶118