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Explanation 1. - For the purposes of this section, "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be.

Explanation 2. - Where on any excisable goods more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed to be the retail sale price for the purposes of this section. From this, the mechanics are unambiguously clear: goods that are required to carry the retail selling price in conformity with the above referred enactment and so notified as to render section 4A(2) applicable are to be assessed on the retail selling price after deducting the abatement provided in a valid notification issued under this section. The Standards of Weights and Measures Act, 1976 is concerned primarily with prescribing the standards of measurement to be complied with by manufacturers and packers and its enforcement thereof. Section 83 of the said Act, however, enables the Central Government to frame rules and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 have been notified for ensuring rights of consumers in relation to pre-packaged commodities. Central to the statutory instrument is the physical impossibility of ascertaining the contents and quantity of goods during the course of sale owing to it having been packaged out of sight of the ultimate consumer. Hence the emphasis on ultimate consumer and retail packing in prescribing the requirements.

(a) the number of individual pieces contained therein;

(b) the retail sale price of the multi-piece package As to what constitutes the package which requires declaration of the above details, the definition in Rule 2 (j) "multi-piece package means a package containing two or more individually packaged or labeled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole Illustration.- A package containing "5 toilet soap cake, net weight 20 g each, total net weight 100 g" is a multi-piece package articulates. The expression package acquires particular significance in these context but is not defined except in a reference in Rule 2, viz., (l) "pre-packed commodity" with its grammatical variations and cognate expressions, means .., and the expression "package", wherever it occurs, shall be construed as a package containing a pre-packed commodity With this background, we proceed to examine the impugned order and the grounds of appeal.

14. Manufacturers, in the natural order of activities, undertake production and utilise channels for distribution of the products. A proprietorial interest is implicit in packaged products and manufacturers, generally, tend to clear goods that are intended for retail market in packages deliverable as such to customers, whether directly or through a channel of distribution. The consumer does not have the opportunity to use the senses to grade the goods against the wish-list in the mind. Nor is it possible to verify the measure of such pre-packaged commodities. The Standards of Weights and Measures Act, 1976 and the rules notified thereunder are intended to ensure that the consumer is not deluded into purchasing goods that was not intended to be. The prescription of retail sale price ensures that the retailer cannot take advantage of local demand-supply gap to boost prices. Considering the nature and intent of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977, the lack the specificity that a taxation statute is required to possess is not surprising. The definitions that distinguish the packaging to which the prescriptions apply should be viewed in that context. The objective being the protection of consumer interests, the prescriptions under the Rules are designed for declaration on the packing intended for delivery as such to the ultimate user. The manufacturer is not required to conform to the prescriptions on other packaging intended for convenience of handling.

19. These individual pieces did have the retail sale price declared on them; however, the net weight or measure contained in each of the sticks and pens do not exceed 10 grams and 10 mililitres respectively. They are, therefore, covered by the exception in Rule 34 (b) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and declaration on the piece is merely voluntary. The original authority had proceeded on the ground that correction pens are never bought by weight by a customer but is always perceived as purchasable only in numbers. That may be so from the point of view of the consumer but, in accordance with our discussion of this aspect supra, that viewpoint is not relevant to the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The exemption provision in Rule 34 does expressly qualify the threshold of grammage and mililitrage with the clause if sold by weight or measure. The original authority has contrived to fit correction pens within the exclusion of numbers from the exemption provision with his theory of consumer behaviour. This is flawed reasoning. Pre-packaged commodities are, undoubtedly, bought as packages but that does not render the declaration of weight or measure on the package to be irrelevant. If it were irrelevant, there would no reason for such elaborate prescription of data, including weight, on the packaging in the Rules and Rule 34 also would be otiose. The original authority appears to have confused the outer packing in the shape of a pen, which is merely the container, with the material inside. Therefore, the sticks and pens containing commodities that are below the threshold prescribed for compliance with the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are beyond the ambit of section 4A of Central Excise Act, 1944.