Per Justice U.L. Bhat :

Respondent is absent in spite of notice of hearing. We have heard Shri M. Ali, JDR and perused the papers.

2. Respondent, engaged in the manufacture of Nitrogen Gas, filed price lists in April 1987 declaring wholesale price as Rs. 5.95 per Cubic mt. and on approval of the price lists was clearing goods on payment of appropriate duty. The dispute in this case relates to the period from 1.4.87 to 30.9.87. Investigation showed that respondent had collected higher prices ranging from Rs. 6.13 per Cu. mt. to Rs. 7.31 per Cu. mt. from certain customers but even in those cases paid duty only on the assessable value as approved. Show cause notice 28.10.88 was issued proposing demand of differential duty on the higher value. The respondent resisted the notice contending that there were only a few cases of retail sales at higher prices and that cannot effect the validity of the wholesale price approved and no demand can be raised on the basis of such sales industrial consumers. The Assistant Collector accepted this contention and dropped the demand and his order has been confirmed by the Collector (Appeals). The department being aggrieved has filed this appeal.

3. Where the industrial consumer purchases in wholesale, he has to be regarded as wholesaler for the purpose of Section 4 (4) (e) of the Central Excises Act. We say so since "wholesale trade" has been defined in Explanation to wholesaler trade as sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase the requirements otherwise than in retail. Where there are industrial consumers who buy their requirements in wholesale, they form a separate class of buyers as contemplated in proviso (i) to Section 4 (1) (a) and in respect of goods sold to them a different assessable value can be arrived at but this cannot apply to stray case where industrial consumers buy goods in retail since such industrial consumers cannot be regarded as wholesale dealers.

4. The Collector (Appeals) has clearly indicated that there were only few stray sales to industrial consumers. It has been the consistent stand of the respondent that all these sales were retail. The department had made no attempt to assert positively that the sales were not retail but wholesale or to produce any material in that regard. We may also advert to the order passed by the Collector (Appeals) which refers to letter dated 3.1.84 by the Assistant Collector to the respondent stating that since wholesale price is known it is unnecessary to file price lists in Part V i.e. price lists for retail prices. By this letter the price lists in Part V filed by the respondent was actually returned. In these circumstances, we find no ground to interfere and accordingly dismiss the appeal.