JUDGMENT : B.P. RAY, J. 1. Heard learned counsel for the petitioner. The prayer in the writ petition is as follows. (a) for an order and declaration of this Hon'ble court that the provisions of Standards and Weights and Measures 1976 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the Standards of Weights and Measures (Enforcement) Act, 1985 do not apply to the petitioner; (b) for an order and declaration of this Hon'ble Court that Section 33 of the Standards and Weights and Measures (Enforcement) Act, 1985 is ultra vires the Constitution of India and is void and liable to be struck down; (c) for a writ of certiorari, or a writ in the nature of certiorari, or any other appropriate writ, order or direction of this Hon'ble Court calling for the records of the case and after perusing the same, to quash and set aside all actions initiated against the petitioner including Ext. P4 issued by the 4th respondent. (d) for a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction of this Hon'ble Court restraining the respondents by themselves, their officers, servants and agents, from taking any action whatsoever against the petitioner's hotels pursuant to or in implementation of any of the provisions of the Standards and Weights and Measures Act, 1976, the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and the Standards of Weights and Measures (Enforcement) Act, 1985 including by launching and/or initiating any legal proceedings, civil or criminal whatsoever against the petitioner's hotels or the Directors or employees. (e) that pending the hearing and final disposal of the petitioner, the respondents be restrained by an order and injunction of this Hon'ble court from taking any action whatsoever against the petitioner, its hotels pursuant to or in implementation of any of the provisions of the Standards and Weights and Measures Act, 1976, the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the Standards of Weights and Measures (Enforcement) Act, 1985 including by way of launching and/or initiating any legal proceedings, civil or criminal, whatsoever against the petitioner, its hotels or the Directors, officers or employees. The short question that arises for consideration in this writ petition is whether the star Hotels run by the petitioner can charge a price in excess of the maximum retail price (MRP) from their customers. The petitioner which is a joint venture company between the Government of Kerala and the Tata Group runs a chain of five star hotels in the State of Kerala. The 4th respondent Legal Metrology Inspector had inspected Hotel Taj Residency on 4.1.1999 and seized 24 bottles of pepsi cola vide Ext. P5 seizure memo alleging violation of the (herein after referred to as the Act) and the standard of Weights and Measures (Package Commodities) Rules, 1977 (hereinafter referred to as the Rules). The specific allegation against the petitioner was that Pepsi Cola which had a maximum retail price of Rs. 8/- was being sold for Rs. 35/- thereby violating the provisions contained in the Act and the Rules. 2. Section 39 of the Act and Rules 4 and 6 deal with the declaration to be affixed on package commodities. Rule 2(i) defines pre-packed commodity and Rule 2(r) defines retail sale price and refers to maximum retail price to be printed on the packages. 3. It is the specific contention of the petitioner that the Act and the Rules can have no application to the Hotel industry. The petitioner submits that what is being sold is not only a product but also an experience including the luxury ambience of the hotel, exclusive service and various other facilities and amenities for which an amount in excess of the maximum retail price is collected from the customer. The petitioner is fortified in this regard by a judgment of the Delhi High Court in The Federation of Hotels and Restaurants Association of India and Others Vs. Union of India (UOI) and Others. It was a case in which charging prices for mineral water in excess of MRP printed on the packaging during the service of customers in Hotels and Restaurants was found to be not violative of any of the provisions of the Standards of Weights and Measures Act, 1976. After referring to a Constitution Bench of the Supreme Court in The State of Punjab Vs. Associated Hotels of India Ltd., and Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, as well as the Constitution Bench of the Supreme Court in M/s. K. Damodarasamy Naidu and Bros. After referring to a Constitution Bench of the Supreme Court in The State of Punjab Vs. Associated Hotels of India Ltd., and Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, as well as the Constitution Bench of the Supreme Court in M/s. K. Damodarasamy Naidu and Bros. Etc. Etc. Vs. The State of Tamil Nadu and Another Etc. Etc., the court held that there is no violation of the provisions of the Act or the Rules in charging a price in excess of the MRP for mineral water. The petitioner submits that the same reasoning is applicable to the facts and circumstances of the present case.. 4. In state of HP v. Associated Hotels in India ( AIR 1972 SC 1131 ) it was held by the Constitution Bench that "the transaction between a Hotelier and visitor to his hotel is one essentially of service". In Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, it was held that the supply of food and drink to the customers in a hotel or a restaurant did not partake the character of sale of goods and the true essence of the transaction is a service. 5. Another contention raised by the petitioner is that the Act and the Rules would apply only if the goods are sold as packaged commodities. The goods like soft drinks are provided by the petitioner not in the packaged form but after opening the same. It is only when goods are sold in a packaged form that the packaged commodity rules are applicable to the same. Again the bottles are opened and contents poured by specially trained bearers into crystal glasses and given to customers along with exclusive cutlery after seating them on expensive upholstered chairs in air-conditioned luxury rooms and restaurants. The price charged by the petitioner includes the cost of all the aforesaid amenities and not only the price of ordinary soft drink. Further Rules 4 and 6 themselves makes it clear that they are applicable to cases in which pre packed commodities are, or are intended to be sold, distributed, delivered or otherwise transferred by weight, measure or number. The petitioner's Hotels are not selling products by this criteria to attract the provisions of the Act and Rules. Further Rules 4 and 6 themselves makes it clear that they are applicable to cases in which pre packed commodities are, or are intended to be sold, distributed, delivered or otherwise transferred by weight, measure or number. The petitioner's Hotels are not selling products by this criteria to attract the provisions of the Act and Rules. For example, nobody walks into a Five Star Hotel to buy home one bottle of pepsi, one litre of milk or one packet of cigarettes while he may consume the aforesaid products as part of a visit to the hotel as part of his hotel experience. 6. Learned counsel for the respondents, relying on the Division Bench decision of this court reported in Union of India (UOI) and The Director of Legal Metrology Vs. Godrej-Ge Appliances Ltd., Controller of Legal Metrology and Inspector of Legal Metrology, argued that since the validity of the rules have been upheld by this court, no interference is called for. It is further submitted that the Rule does not categorise any type of business organisation in compliance with the provisions of the Rules. Whoever engaged in the sale of commodities, that is from the street vendor to Star Hotel are liable under the provisions of the Rules. The standard of Weights and Measures (PC) Rules 1977 has been issued by the Central Government in exercise of the powers u/s 83 of the Standards of Weights and Measures Act 1976. This rule is issued to regulate the transaction of the commodity in packaged form intended to be sold or distributed in the course of inter-state trade or commerce as required by the Section 39 of the Standards of Weights and Measures Act, 1976. By virtue of the Section 33 of the Standards of Weights and Measures (Enforcement) Act, 1985 this rule is also made applicable to inter-state trade or commerce. The rule prescribes the detailed procedure as regard to the manner of packing, making declarations such as the name and address of the manufacturer, the common or generic name of the commodity, the net quantity in terms of standard unit of weight or measure, month and year of packing, the retail sale price of the package and so on. The rule also prescribes penalties for violations of the Act or Rules. The rule also prescribes penalties for violations of the Act or Rules. I have considered the rival contentions and I am of the considered view that charging prices for soft drinks in excess of MRP printed on the packaging, during the service of customers in hotels and restaurants does not violate any of the provisions of the SWM Act as this does not constitute a sale or transfer of these commodities by the hotelier or restaurateur to its customers. The customer does not enter a hotel or a restaurant to make a simple purchase of these commodities. It may well be that a client would order nothing beyond a bottle of water or a beverage, but his direct purpose in doing so would clearly travel to enjoying the ambience available therein and incidentally to the ordering of any article for consumption. Although the validity of the Rule have been challenged, I do not find any necessity to answer the challenge in view of the Division Bench decision of this court cited supra. Therefore, the impugned notices are quashed. Original petition is disposed of with the aforesaid directions. No costs.