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(q) retail sale", in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities or consumption by an individual or a group of individuals or any other consumer.

The declaration to be made on every package intended for retail sale is prescribed in Rule 6 which is as under:

6. Declaration to be made on every package -
(1) Every package shall bear thereon or on a label securely affixed thereto a definite, plain and conspicuous declaration, made in accordance with the provisions of this Chapter as to -
(a) the name and address of the manufacturer, or where the manufacturer is not the packer, of the packer or with the written consent of the manufacturer, of the manufacturer;
(b) the common or generic names of the commodity contained in the package;

Explanation:- Generic name in relation to a commodity means the name of the genus of the commodity, for example, in the case of common sale, sodium chloride is the generic name.

(c) the net quantity, in terms of the standard unit of weight of measure, of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package;

a package containing any commodity which is produced, distributed, displayed, delivered or stored for sale through retail sale agencies or other instrumentalities for consumption by an individual or group of individual.

It is the contention of the Revenue that retail sale shall mean sale of any commodity packed in packages meant for retail sale and retail sale does not mean that sale of a single individual item. That cannot be accepted in view of the above.

2.6 Perusal of the MRP (Act & Rules) reveals that declarations on the wholesale packs under clearance are required to be made as prescribed under Rule 29, which reads as under:

Retail package" means a package containing any commodity which is produced, distributed, displayed, delivered or stored for sale through retail sale agencies or other instrumentalities for consumption by an individual or a group of individuals, 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.
A careful reading of the above definitions would show that in the case of multi-piece package such a package should contain 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. In the case of a wholesale package, inter alia, it should contain 10 or more than ten retail packages provided that the retail packagers are labeled as required under the Rules. A harmonious construction of the three definitions would show that a unit package, which is consumed by the ultimate consumer, is a retail package; and a package which contains two such unit packages but not more than 9 such unit packages, is a multi-piece package; and if a package which contains ten or more such unit packages, is a wholesale package. The appellants, therefore, submit that these packages need to have only the declarations required to be made for a wholesale package as stipulated in Rule 29 of the said Rules. Any declaration of a recommended price is merely an advice to the wholesale trader and cannot form the basis of valuating of these packages under Section 4A of the Central Excise Act. Hence a declaration made under Rule 17(1) of the SWMR of certain additional details in respect of the impugned packages such as sale price and the number of individual pieces of the commodity contained in such packages is not tenable. It is, therefore, the submission of the appellants that these poly packs and pet jars weighing 500 gms. and 720 gms. and above are clearly "wholesale packages" as they are not purchased by retail customers/ultimate consumers. The decision in the impugned Order-in-Appeal that the exemption given in Rule 34(1)(b) of the PCR would not be available to the impugned products as the same are being sold in pieces/numbers and not by weight is completely misplaced in as much as the impugned products, as explained above, are cleared from the appellants' factory either in pouches of 500 gms. and in jars of 720 gms. and above which are sold in the wholesale market as such, which is a mandatory requirement that as per the National Industrial Classification, the sugar confectionary is required to be sold in Kgs., i.e. by weight. This clearly shows that the impugned goods are sold by weight in the market and not by pieces/numbers. The appellants submit that, the net weight of each piece of confectionary in the package is 3.3 gms., which is less than the weight specified in Rule 34(1)(b) and the packages are sold by weight as a wholesale package, which is an admitted position. In this connection, the appellants refer to and rely upon the decision of the Hon'ble Tribunal in the following cases.