V.T. Raghavachari, Member (J)

1. Under classification list No. 90/82 effective from 22.4.1982 the respondents M/s. United Paper Products claimed benefit under Notification No. 144/82 dated 22.4.1982 in respect of "corrugated 5 ply printed cardboard cases made out of duty paid kraft paper" manufactured by them and classifiable under Item 17(4) CET. Under order dated 11.10.1983 the Assistant Collector granted approval without benefit of the said notification. on appeal the said order was set aside by the Collector (Appeals) under his order dated 17.9.1984 under which he extended benefit of exemption under the notification. The appeal by the Collector of Central Excise, Patna is against that order.

2. While making his submissions on behalf of the appellant Collector, Shri LC. Chakraborty made a request that he should be granted time to take instructions from the Collector for advancing an argument that the subject goods would be printed cartons and for that reason be Ineligible for the concession claimed. His submission was that under the proviso to the notification, benefit would not be available in respect of printed boxes as well as printed cartons, but that the Collector (Appeals) considered the issue before him only with reference to the position whether the subject-goods would be printed boxes and not with reference to the position whether they would be printed cartons and by reason of that omission the order of the Collector is vitiated and will have to be set aside. Dr. Ghose representing the respondents/assessee objected to this submission and contended that the case for the Department has all along been that the products are printed boxes and never that they were printed cartons and that is why the issue whether they became ineligible for benefit under the notification on the ground that they were printed cartons was never considered either by the Assistant Collector or by the Collector (Appeals) and, therefore, the Department ought not to be permitted to set up this case especially when no such case had been pleaded in the appeal memorandum as it now stands.

3. We have heard submissions on this limited issue from both sides and the present order deals with that limited issue only.

4. Paragraph 1.1 of the grounds of appeal commences as follows:

'the Assistant Collector has correctly and legally held that the product of the assesses namely, card board container is nothing but a card board box."

At the end of paragraph 1.2 it is again stated as follows:

"Hence this product of the assessee is certainly covered by the aforesaid definitions of a box."

Again in paragraph 1.4 it is stated as follows:

"It is obvious from the facts available in records that the character, nomenclature in trade parlance and use, the product of the assessee is a 'box'."

In paragraph 3 at the end it is stated as follows :

"Hence the assesses cannot escape the liability simply by changing the nomenclature from card box to card board container."

In paragraph 4 it in stated as follows:

"Since in shape, character and use it is a box, the product of the assessee is certainly a card board box falling under T.I. 17(4) of the erstwhile tariff entry. and when this is so, the benefit of exemption under Notification No. 66/82 dated 1.3.1982 and Notification No. 279/82 dated 22.11.1982 is not available to the assessee, because their product viz. corrugated printed: card board containers made out of kraft paper in combination of unbleached duplex board which is essentially a box, is neither covered by Notification No. 66/82 nor by Notification 279/82".

5. It is, therefore, clear that the present appeal before us proceeds entirely on the basis that the product in issue is a box and is a printed box and hence is disentitled to benefit claimed under notification. as pointed out by Dr. Ghose the proceeding before the lower authorities was also on the basis, so far as the Department is concerned, that the product in issue is a box. When it is noted that the proviso to t