BASEMAN PHARMACEUTICALS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we proceed to deal with the appeal.

(2.) THE original authority demanded duty of Rs. 16;59,858/ - from the appellants (manufacturers of pharmaceutical products) for the period 01.09.1997 to 14.06.2002. This demand was consequential to denial of SSI benefit to the assessee on the ground that, during the said period, they were clearing their products under brand names, which belonged to their customers. Aggrieved by this decision, the party preferred an appeal to the Commissioner (Appeals) and also filed therein an application for waiver of predeposit of duty and penalty amounts. The application was disposed of by the appellate authority directing the party to predeposit an amount of Rs. 5 lakhs (out of the aforesaid amount of over Rs. 16.5 lakhs) under Section 35F of the Central Excise Act. This deposit was not made by the party, who filed an application with the appellate authority seeking modification of its order on the ground of financial hardships. It appears, this application was not considered by ld. Commissioner (Appeals), who, upon finding that the predeposit directed had not been made, dismissed the assessees' appeal on the ground of non -compliance with Section 35F. Hence the present appeal.

(3.) LD . Counsel has claimed strong prima facie case for the appellants. It is submitted that the brand names belonged to the appellants as evidenced by the assignment deeds executed by them in favour of their buyers (dealers). It is also submitted that the finding of the original authority regarding the ownership of the brand names in question is exclusively based on statements of dealers and that the request made by the appellants for an opportunity to cross -examine those witnesses was turned down by the original authority. Finally, it is submitted that the appellant had closed down his manufacturing activity as early as in 2002 and is no longer in the field on account of his financial bankruptcy. Asked whether there was any evidence of financial hardships on record, ld. Counsel submits that there is none.