Per T.K. Jayaraman : In the Misc. Order Nos. 994, 995/2004 dated 19.11.2004, in Appeal Nos. E/441/04 E/725/02, this Bench observed that there are contra judgments on the issue of determination as to whether a particular sale is to be considered as wholesale or retail and hence, the matter was referred to the Hon'ble President of CESTAT to constitute a Larger Bench to resolve the controversy involved in the said appeals. Consequent to the constitution of the Larger Bench, we are deciding the issue in respect of these appeals. As regards the appeal filed by M/s. Steel Complex Ltd., Kerala, an Additional issue is involved.

2. The relevant facts briefly stated are as follows:

M/s. Hindustan Lever Ltd.

In this case, the appellants claimed the benefit of exemption under Notification No. 6/2002-CE dt. 1.3.2002 as amended by Notification No. 6/2003-CE dt. 1.3.2003. The Notification benefit was available to Vanaspati, Bakery Shortening, Margarine and other edible preparations. However, in case the goods bear a brand name and are put up in unit containers and meant for retail sale, the exemption would not be available. The impugned goods, no doubt, bear a brand name and are put up in unit containers. However, there is a label indicating that the goods are meant for Bakery/Catering Industry use. It is further indicated that the impugned goods are 'not for retail sale'. The appellant contend that they are entitled for the exemption on the ground that the impugned goods are not meant for retail sale but, the Revenue, is of the view that the goods are sold to consumers and, therefore, the sale is a retail one. The appellants rely on a number of case-laws. Revenue also relies on certain case-laws. We have to examine all the case-laws to arrive at a proper conclusion.

M/s. Steel Complex Ltd.

In this case, the appellants declared a price, which is different from what is shown in the commercial invoice. The appellants supply steel products to Government Units. The appellants contended that clearances to Government Units who utilised the goods for construction purposes should be considered as retail sale. Since, during the relevant period, excise duty was charged on the basis of wholesale price, the appellant considered the price at which they sold the goods to be retail price and worked out the assessable value in terms of Rule 6(a) of the Central Excise (Valuation) Rules, 1975. There is another issue in this appeal. The appellant charged a price of 10% over the normal price to all the Government Units by virtue of the Kerala Government Circular. This is called Price Preference. This extra amount was not taken into account while arriving at the Assessable value. The appellant contends that this extra price is not includible as it is in the nature of a subsidy.

3. In the case of both these appeals, the concerned authorities passed orders in favour of the Revenue.

4. Shri B.V. Kumar, the learned Advocate appeared for M/s. Hindustan Lever Ltd. and Shri K. Parameswaran, the learned Advocate appeared for M/s. Steel Complex Ltd. Shri L. Narasimha Murthy, the learned SDR appeared for Revenue.

5. Before examining the case-laws, we like to delve on the general meaning of 'wholesale' and 'retail' transactions. When commodities are purchased, one can purchased in either large or small quantities depending upon the requirement. A trader normally purchases goods in appreciable quantity for the simple reason that the goods are purchased for re-sale. It does not mean that only a trader would purchase goods in huge quantities. Sometimes, on special occasions, an individual may require huge quantities of goods. In that case, even an individual consumer can purchase items on the basis of wholesale price. It is a well-known trade practice that when goods are purchased on wholesale basis, the price charged would be less. That is why there are discounts for bulk purchases. The Black's Law Dictionary defines 'wholesale' as 'a sale in large quantity to one who intends