G. Sankaran, Vice President (T)

1. The facts of this case, briefly, stated, are that M/s. R.M.D.C. Press Pvt. Ltd., Bombay (hereinafter referred to as "R.M.D.C." for brevity's sake) were engaged, at the material time, in the manufacture of Printed Cartons and were paying excise duty thereon under item No. 68 of the First Schedule (hereinafter the 'CET') to the Central Excises and Salt Act, 1944 (hereinafter, the 'ACT'). However, it appears that they represented to the authorities that printed cartons were products of the printing industry and, as such, were eligible for exemption from duty in terms of Central Excise notification No. 122/75 which exempted inter alia "all products of the printing industry including newspapers and printed periodicals". The Assistant Collector rejected the representation of R.M.D.C. by an order dated 5.7.1978. By this order, he observed that he was not in a position to conclude that R.M.D.C.'s goods were identical to those manufactured by certain other parties in whose cases the appellate authority or the revision authority had found in the manufacturers' favour. He further held that the cartons were essentially meant for packing and any printing done thereon was only to indicate the contents and the brand. Printing did not change the identity of the cartons. Without the printing, the manufacturers themselves would have accepted them as products of packing industry. On this reasoning, the Assistant Collector rejected the claim for duty exemption. In appeal, the Appellate Collector of Central Excise, Bombay, by his Order dated 25.9.1978, set aside the Assistant Collector's order and allowed the exemption basing his decision on the order-in-revision No. 2057 of 1977 dated 5.12.1977 passed by the Central Government in the case of Alli-Bhoy Sherafally & Company.

2. The Central Government, in exercise of its powers Under Section 36(2) of the Act, perused the records of the case with a view to satisfying itself whether the aforesaid order-in-appeal was proper, legal and correct. It appeared to the Central Government that the view taken in the Order-in-Revision (No. 2057/77) deserved reconsideration and could not, therefore, be considered as binding in all cases. The Government, therefore, called on R.M.D.C. to show cause why the order-in-appeal dated 25.9.1978 should not set aside and an Order should not be passed that the printed cartons manufactured by the assessee could not be held as products of the printing industry eligible for exemption under notification No. 55/75 dated 1.3.1975 as amended by notification No. 114/75 and 122/75 but were products of the packaging industry.

3. R.M.D.C. filed a Writ Petition (numbered as Civil Writ No. 1140 of 1980) before the Delhi High Court challenging inter alia the validity of the aforesaid show cause notice dated 6.9.1979. By an Order dated 29.8.1980, the High Court stayed further proceedings or steps in pursuance of the said show cause notice. By another Order dated 2.2.1982, the Court modified the Order of 29.8.1980 and directed that the proceedings may continue. However, the Court further directed that in the event of the review proceedings (going) against the petitioner, the respondents to the petition were restrained from taking any steps in pursuance of the final order that may be passed without obtaining the permission of the Court.

4. It is the proceedings initiated by the issue of the show cause notice dated 6.9.1979, that are, on transfer to this Tribunal Under Section 35P(2) of the Act, now before us to be disposed of as if it were an appeal before us. We are, therefore, treating this as an appeal filed before us by the Collector of Central Excise, Bombay.

5. We have heard Shri Vineet Kumar, Senior Departmental Representative and Shri K.C. Sachar, J.D.R. for the appellant-Collector and Shri P.G. Gokhale and Shri A. Hidayatullah, Advocates for the respondents R.M.D.C.

6. Since the respondents R.M.D.C. have vehemently contested the validity of the show