Telangana High Court
Mr. G. Ramesh Kumar vs Union Of India on 13 September, 2023
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 CJ & NVSK, J 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 CJ & NVSK, J 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 CJ & NVSK, J 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 CJ & NVSK, J 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 CJ & NVSK, J 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.
CJ & NVSK, J 7 W.A.No.896 of 2023 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 CJ & NVSK, J 8 W.A.No.896 of 2023
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 CJ & NVSK, J 9 W.A.No.896 of 2023 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.
CJ & NVSK, J 10 W.A.No.896 of 2023
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.
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