Telangana High Court
Mr. G. Ramesh Kumar vs Union Of India on 13 September, 2023
Bench: Alok Aradhe, N.V.Shravan Kumar
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT APPEAL No.896 of 2023
JUDGMENT: (per the Hon'ble the Chief Justice Alok Aradhe)
Mr. C.R. Sridharan, learned Senior Counsel represents
Mr. G.V.S. Ganesh, learned counsel for the appellant.
2. This intra court appeal takes an exception to order dated
28.07.2023 passed by the learned Single Judge by which Writ
Petition No.3482 of 2011 preferred by the appellant has been
dismissed with liberty to him to take all available pleas before
the forum where the proceeding is pending. In this order, the
parties shall be hereinafter referred to as per their rankings
before the learned Single Judge.
3. 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
Inspector, Legal Metrology, Weights and Measures
Department on 29.01.2011 and in the presence of panchas, a
panchanama was prepared. Thereafter, a notice dated
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2 W.A.No.896 of 2023
30.01.2011 was served on the petitioner by which he was
informed that he has contravened Section 39/33 of the
Standards of Weights and Measures Act, 1976 (hereinafter
referred to as 'the 1976 Act') and Rule 23(1) of the Standards
of Weights and Measures (Packaged Commodities) Rules,
1977 (hereinafter referred to as 'the 1977 Rules'). The
petitioner was further informed that the aforesaid act is an
offence punishable under Section 63/51 of the 1976 Act and
Rule 39 of the 1977 Rules. The petitioner was further
informed that the said offence is compoundable under Section
73/65 of the 1976 Act in case he wishes to get the offence
compounded instead of being tried in the Court of law. The
petitioner was therefore apprised that he may do so by paying
the compounding fee within a period of ten (10) days from the
date of receipt of the notice. The petitioner filed a detailed
reply on 11.02.2011 to the aforesaid notice.
4. The petitioner thereafter filed Writ Petition No.3482 of
2011 on 14.02.2011 in which validity of the panchanama
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3 W.A.No.896 of 2023
drawn on 29.01.2011 and the notice dated 30.01.2011 was
assailed.
5. The learned Single Judge by an order dated 28.07.2023
inter alia held that merely because Section 102(3) of Cr.P.C.
and Section 29 of the 1976 Act have been breached, the same
does not render the proceeding void. It was 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 packaged
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 concerned where the case has
been filed.
In the aforesaid factual background, this intra court
appeal arises for our consideration.
6. Learned Senior Counsel for the petitioner at the outset
has invited the attention of this Court to communications dated
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4 W.A.No.896 of 2023
01.05.1991 and 16.11.1992 issued by Deputy Director of
Ministry of Food and Civil Supplies and has contended that
the Government of India has advised the Controllers of Legal
Metrology of all States to not to treat the tyres wrapped with
foil as pre-packaged commodity under the 1976 Act. It is
further submitted that the aforesaid communications issued by
the Deputy Director of Ministry of Food and Civil Supplies are
binding on all the authorities. In support of aforesaid
submission, reliance has been placed on decision of Hon'ble
Supreme Court in Union of India and others v. Arviva
Industries India Limited and others 1. It is therefore contended
that the proceeding initiated against the petitioner is void.
7. It is further submitted that the allegation made by the
petitioner in reply to the notice dated 30.01.2011 that the
panchanama is manipulated has not been denied. It is further
submitted that even though the Officer, who inspected the
premises of the petitioner, has been impleaded in his personal
1
(2014) 3 Supreme Court Cases 159
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5 W.A.No.896 of 2023
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 made in the writ petition shall be taken
to be admitted. It is also submitted that the mandate contained
in Section 29 of the Act and Section 102 of Cr.P.C. has been
violated.
8. We have considered the submissions made by the
learned Senior Counsel for the petitioner and have perused the
record.
9. Hon'ble Supreme Court in Arviva Industries India
Limited (supra) while taking note of previous decision
rendered in the case of Commissioner of Customs v. Indian Oil
Corporation Limited 2 has culled out the following principles
in para 4 of the order.
(1) Although a circular is not binding on a court or an assessee, it is
not open to the Revenue to raise a contention that is contrary to a
binding circular by the Board. When a circular remains in
operation, the Revenue is bound by it and cannot be allowed to
2
(2004) 3 SCC 488
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6 W.A.No.896 of 2023
plead that it is not valid nor that it is contrary to the terms of the
statute.
(2) Despite the decision of this Court, the Department cannot be
permitted to take a stand contrary to the instructions issued by the
Board.
(3) A show-cause notice and demand contrary to the existing
circulars of the Board are ab initio bad.
(4) It is not open to the Revenue to advance an argument or file an
appeal contrary to the circulars.
10. The aforesaid decision is an authority for the proposition
that the circulars issued under Section 119 of the Income Tax
Act, 1961 and Section 37-B of the Central Excise Act, 1944
are binding on the revenue.
11. The aforesaid well settled legal position cannot be
disputed.
12. In the backdrop of the aforesaid principles, we may
advert to the facts of the case in hand. The communications
dated 01.05.1991 and 16.11.1992 are extracted below for the
facility of reference.
No.WM-10(2)/91.
Government of India
Ministry of Food and Civil Supplies
(Department of Civil Supplies)
....
12-A, Jam Nagar House,
New Delhi - 110011.
Dated the 1 May, 1991.
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To
The Controllers of Legal Metrology,
All States/UTs.
Subject: Applicability of the Standards of Weights &
Measures (Packaged Commodities) Rules, 1977 on tyre,
tube and flap tied together by polythene strips -
clarification - regarding.
......
Sir,
I am directed to enclose a photograph of a tyre with tube & flaps tied with
three thin polythene strips. Prima facie the arrangement shown in the photo may not
be treated as a 'pre-packed commodity' within the meaning of rule 2(1) of the
Standards of Weights & Measures (Packaged Commodities) Rules, 1977. You may
like to advise the field staff in your state suitably in this matter.
Yours faithfully,
Sd/-
Encl: Photograph
No.WM-10(2)/91.
Government of India
Ministry of Civil Supplies, Consumer
Affairs and Public Distribution.
12-A, Jam Nagar House,
New Delhi - 110011.
Dated: 16 November, 1992.
To
The Controllers of Legal Metrology,
All States/UTs.
Subject: Applicability of the Standards of Weights &
Measures (Packaged Commodities) Rules, 1977 on tyres,
tubes and flap tied together by polythene strips -
clarification - regarding.
......
Sir,
I am directed to invite your attention to this Ministry's letter of even number
dated 1st May, 1991 clarifying the position that a tyre with tube and flap tied with
three thin polythene strips may not be treated as a prepacked commodity within the
meaning of rule 2(1) of the Standards of Weights & Measures (Packaged
Commodities) Rules, 1977.
It is brought to our notice that in addition to the three thin polythene strips,
some of the tyre manufacturers are also tieing small gunny strip indicating some code
or marking regarding destination to facilitate transporters for handling these tyres. A
photograph of a tyre tied with gunny strip is enclosed.
The case was re-examined and our opinion use of such additional strip is not
changing the situation as such it may not be treated as "Pre-packed Commodity". You
may like to advise the field staff in your state suitably in this matter.
Yours faithfully,
Sd/-
DEPUTY DIRECTOR
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13. From a perusal of the aforesaid communications, it is
evident that they have not been issued in exercise of any
statutory provision under the 1976 Act. In addition,
communication dated 01.05.1991 refers to "photograph" of a
tyre with tube & flaps tied with three thin polythene strips. The
aforesaid communication states that prima facie arrangement
showed in the photo may not be a pre-packed commodity.
Whether the said arrangement was in existence in the shop of
the petitioner at the time of inspection is a question of fact. In
addition, it is pertinent to note that the aforesaid
communication appears to be the opinion of the Deputy
Director of Ministry of Food and Civil Supplies. Similarly, the
communication dated 16.11.1992 has not been issued in
exercise of any statutory power under the 1976 Act. The
Deputy Director of Ministry of Civil Supplies, Consumer
Affairs and Public Distribution has recorded his opinion that a
tyre with tube and flap tied within three thin polythene strips
may not be treated as a pre-packed commodity. The aforesaid
communications which have no statutory sanction and are
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opinions expressed by the Deputy Director cannot 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.
14. The petitioner has been given the notice of the
proceeding. He has further been apprised that he has the option
to get the same compounded or he may choose to face the trial.
The matter could not proceed further on account of an interim
order which was granted on 15.02.2011. In view of aforesaid
conclusion 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.
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15. For the afore-mentioned reasons, we do not find any
ground to differ with the view taken by the learned Single
Judge in the order dated 28.07.2023 in Writ Petition No.3482
of 2011.
16. In the result, the appeal fails and is hereby dismissed.
Miscellaneous applications, if any pending, shall stand
closed. There shall be no order as to costs.
___________________
ALOK ARADHE, CJ
________________________
N.V. SHRAVAN KUMAR, J
th
13 SEPTEMBER, 2023.
kvni
