Karnataka High Court
M/S. Atria Convergence vs Union Of India on 9 November, 2018
Author: K.Natarajan
Bench: K.Natarajan
1/9
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE DR JUSTICE VINEET KOTHARI
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
WRIT APPEAL Nos.1846-1849/2014 (GM-RES)
Between
1. M/s. Atria Convergence
Technologies Pvt. Ltd.,
A Company Incorporated under
the Provisions of the Companies
Act, 1956, Having its registered
Office at No.1, 2nd Floor
Indian Express Building
Queen's Road, Bangalore-560001
Rep. by its Authorised Signatory
Mr. Suresh Babu.
2. Mr. Nitin Shinde
S/o Subba Rao Shinde
Aged about 24 years
R/at. No.31, 16th Cross
Hesarghatta Main Road
Nagasandra post
Bagalgunte, Bangalore-560073.
3. Mr. Bala Malladi
S/o Vishwanatham Malladi
Aged about 45 years
R/at. No.A-805, Salarpuria Splendour
Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014
M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
2/9
Near Kemp Fort, 20 NR Colony
Airport Road, Bangalore.
4. Mr. Sunder Raju
S/o S. Chinnaswamy Raju
Aged about 56 years
R/at. No.294, Upper Palace Orchards
Sadashivanagar, Bangalore-560080.
... Appellants
(By Mr. B. Vachan, Advocate)
And
1. Union of India
Ministry of Consumer Affairs,
Food & Public Distribution
Department of Consumer Affairs
(Legal Metrology), krishi Bhawan
New Delhi-110114.
2. Department of Legal Metrology
Hebbal Sub-Division
BDA Complex, Shop No.52 & 53
R.T. Nagar, Bangalore-560032
Represented by its Inspector.
.. Respondents
(By Mr. Kumar M.N. CGC for R1
Mr. S.S. Mahendra, AGA for R2)
These Writ Appeals are filed under Section 4 of the
Karnataka High Court Act, praying to set aside the order
dated 11-07-2014 passed in W.P.No.7636-7639/2014 (GM-
RES) passed by the learned Single Judge of this Court.
Issue such other order/s as this Hon'ble Court deems fit to
grant in the facts and circumstances of the case.
These Writ Appeals coming on for Preliminary Hearing
in 'B' Group this day, Dr. Vineet Kothari J., delivered the
following:
Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014
M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
3/9
JUDGMENT
Mr. B. Vachan, Advocate for Appellants Mr. Kumar M.N. CGC for R1 Mr. S.S. Mahendra, AGA for R2
1. The petitioners M/s Atria Convergence Technologies Pvt.Ltd. and others have filed these intra-Court appeals against the order passed by the learned Single Judge dated 11/07/2014 dismissing the writ petitions filed by the petitioners as premature as the same were directed only against the Notice issued by the Respondent No.2 viz. the Inspector of the Department of Legal Metrology, Bangalore, calling upon the petitioners to Show Cause as to why the commodity in question viz. CISCO Brand Digital Set Top Box may not be treated as a "pre-packaged commodity" as defined under the provisions of the Legal Metrology Act, 2009 and in the absence of the requisite declarations made for the "pre-packaged commodities", Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
4/9 the penalty Section 36 of the said Act may not be imposed upon the petitioners.
2. The learned Single Judge dismissed the writ petitions on the ground that the same were directed only against a Notice and therefore, the petitioners should first answer the Show Cause Notice before the concerned Authority. Being aggrieved by the said order, the petitioners have filed these intra-Court appeals before us.
3. The learned counsel for the appellants, Mr. Vachan submitted that the Notice in question Annexure F dated 04/12/2013 prejudges the issue and therefore, it would an exercise in futility to go and show cause before the same Authority.
4. The learned counsel submitted before us that the Set-top Boxes are not sold to the customers and they are only given temporarily to the customers on lease basis and upon the non-subscription by the Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
5/9 customers to receive the signals from the said Set-top Boxes for their TV Sets, the petitioners are entitled to the return of the said Set-top Boxes and therefore, the said commodity does not fall within the definition of "pre-packaged commodity" under the said Act.
5. The learned counsel relied upon the decision of the learned Single Judge of this Court in the case of M/s. Bharati Airtel Limited, Rep. by its General Power of Attorney Holder Vs. State of Karnataka Rep. by its Chief Secretary and others, ILR 2010 Kar.1968 with respect to the commodity known as "Telephone SIMs" under the provisions of the Standards of Weights and Measures Act, 1976.
6. On the other hand, the learned counsels for Respondents opposed the said submissions and urged that the writ petitions were rightly dismissed as premature, as the same were directed only against a Show Cause Notice issued by the concerned Authority.
Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
6/9
7. Having heard the learned counsels for the parties, we are satisfied that there is no error in the order passed by the learned Single Judge dismissing the writ petitions as premature, as the writ petitions were directed only against the Show Cause Notice issued by the Inspector of the Respondent Department.
8. However, we are of the view that the question involved in the present writ appeals is of a larger significance and may affect the large number of such Assessees or Dealers, who are dealing with such Set-top Boxes for transmission of TV Signals. Whether there is a sale of the said Commodity or not, whether it falls within the definition of "pre-packaged commodity" as defined under Section 2(l) of the Act or not and whether the requirements of giving Declarations in respect of the "pre-packaged commodity" apply to these commodities also or not, are the questions which may affect a larger section of the Dealers of this nature and therefore, having wider implications, we feel it Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
7/9 expedient and necessary that these questions be decided by an Authority higher than the cadre of the Inspector of the said Department, who issued the impugned Show Cause Notice to the petitioner - Company.
9. We have examined the Scheme of Sections 13 and 14 of the Act. Section 13(7) of the Act stipulates that the Central Government with the consent of the State Government and subject to such conditions, limitations and restrictions as it may specify in this behalf, delegate such of the powers of the Director under this Act to the Controller of Legal Metrology in the State and such Controller may, if he is of the opinion that it is necessary or expedient in the public interest so to do, delegate such of the powers delegated to him to any Legal Metrology Officer, etc. Thus, the Controller of the Legal Metrology Department seems to Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
8/9 be the highest Authority under the Act as far as the State of Karnataka is concerned.
10. Accordingly, we direct the petitioners to Show Cause and submit their objections before the Controller of the Legal Metrology Department, Bangalore in pursuance of the impugned Notice Annexure F dated 04/12/2013 and we direct the said Authority viz. the Controller of the Legal Metrology Department to provide an opportunity of hearing to the petitioners and thereafter pass a detailed speaking order with respect to the issues raised in the said Notice and in this Writ Petition.
11. In the first instance, the petitioners may appear before the said Authority on 10/12/2018 with a copy of the order passed by us and a period of three months' time is allowed to the said Authority to pass appropriate speaking order deciding the said Notice deciding the said Notice.
Date of Judgment 09-11-2018 W.A.Nos.1846-1849/2014 M/s. Atria Convergence Technologies Pvt. Ltd., & Ors.
Vs. Union of India & Anr.
9/9
12. We expect the Lower Authorities than the Controller of Legal Metrology Department not to precipitate the situation for the present petitioners until the Controller decides the aforesaid issues.
13. The present writ appeals, accordingly stand disposed of. No costs.
Sd/-
JUDGE Sd/-
JUDGE BMV*