ORDER
J.H. Joglekar, Member (T)
1. This case was posted for admission. After hearing Shri K.L. Ramteke for the Revenue the appeal was admitted and was taken up for disposal since the issue was found to be well settled.
2. The assessees had declared aluminium sheets, circles and strips falling under Heading 7606.10 as well as 7606.20 in their declaration filed under Rule 57Q. In the invoices the inputs received were shown as “aluminium plates”. The Assistant Commissioner denied the credit on the ground that sheets and plates were different products differently shown in the tariff. He ruled that the inputs received were not declared in the declaration. On this ground he denied the credit. Before the Commissioner (Appeals) five judgments of the Tribunal were cited. He has not discussed the judgments in his order but accorded relief to the assessees. The Revenue have filed this appeal against this order. In the appeal memorandum it is claimed that there is a substantial difference between plates and sheets in dimensions as well as in the use and therefore the Commissioner (Appeals) was wrong in allowing the credit.
3. The respondents were not present but applied for adjournment. I find that the issue can be disposed of in the absence of the respondents also.
4. I find that this has been the subject matter of dozens of appeals before the Tribunal. The Tribunal has constantly held that where the tariff item is shown, the difference on account of sub-headings should not go for denial of the Modvat credit. In the cited judgment in the case of Perfect Industrial Corporation v. C.C.E., 1955 (77) E.L.T. 558 the declaration had shown the inputs as pipes where the invoices had described the goods as tubes. The Tribunal held that this difference was not material as long as the assessees had received the goods and had used the goods in the manufacture of further products. The Commissioner (Appeals) in the impugned order has observed that plates and sheets both fall under the same tariff heading as also the same sub-headings, the only difference being made is on the ground of pure aluminium and aluminium alloys. In this situation I find that the Commissioner (Appeals) was correct in allowing the appeal.
5. It is difficult to understand the appeal filed by the Revenue. When the judgments cited before the Commissioner (Appeals) and its discussion had covered all the aspects, there was little propriety in the appellant Commissioner seeking to draw a distinction between plates and sheets. Where an appellate authority has placed reliance on certain case law, and where that order is sought to be challenged, the person who challenges must show that the case law was not relevant or that ratio thereof was not applicable to the facts. In the alternative the person challenging the order has to cite case law supporting his point, preferably arising out of an order of a superior forum than the forum on whose judgments reliance is placed in the challenged order. In the appeal memorandum this is nothing of a challenge.
6. With these observations I dismiss this appeal from Revenue.