- (1.) HEARD learned Counsel appearing for the parties. Petitioner is engaged in the manufacture of patent and proprietary medicines. Petitioner claimed benefit of exemption notification No. 175/86. The exemption was denied on the ground that the products manufactured by the petitioner bore the trade name of others who were not entitled to avail the benefit of notification No. 175/86. The Assistant Collector as per the order dated July 31, 1990 confirmed the demand of Rs. 1,59,617.70. (One lakh fifty nine thousand six hundred seventeen and paise seventy only). Against this order, an appeal was filed before the Collector (Appeals). The Collector (Appeals) also rejected the appeal as per the judgment and order dated 11.10.1991. Against this order, an appeal is filed by the petitioner before the CEGAT. During the pendency of appeal, an application for dispensing with the pre -deposit of the amount involved in the appeal was submitted. CEGAT rejected the said application on the ground that the petitioner had no prima facie case. CEGAT in terms held that the case of the petitioner was covered against the petitions by the decision of the Tribunal in the case of Thio Pharma v. Collector of Central Excise, Jaipur (Order No. 53/93 -C dated 21.2.1992). It is against this order dated 27.3.1992 that the present writ petition has been filed.
(2.) IT is contended that while rejecting the application, the Tribunal has not considered the financial position of the petitioner. This very question was sought to be agitated by the petitioner before the Tribunal by filing a review petition and the Tribunal by another order bearing Misc. Order No. 243/92 -C rejected the same. Once the Tribunal has come to the conclusion that the petitioner has no prima facie case, the question of consideration of alleged undue hardship on account of financial position of the petitioner, pales into insignificance. The question of hardship may be required to be considered provided the petitioner makes out a prima facie case in its favour. In the instant case, there is clear finding that the petitioner had no prima facie case. This finding is arrived at in view of the earlier decision of the Tribunal in the case of Thio Pharma (supra). Therefore, it cannot be said that this decision is in any way unjust. Reliance placed by the learned Counsel for the appellant on the following decisions is of no help: (1) Indian Jute Industries Ltd. v. Collector of Central Excise (Appeals) : 1992(62)ELT290(Cal) (2) Excel Rubber Products v. Addl. Collector of Central Excise and Customs : 1989(44)ELT629(Ker) . (3) Associated Switchgears Pvt. Ltd. v. CEGAT : 1995ECR447(Allahabad) In any of the aforesaid decisions cited, the question is not considered from the point of view that when the assessee does not make out a prima facie case, whether the question of undue hardship on account of financial position of the assessee is required to be considered or not.
(3.) EVEN so, we requested the learned Counsel for the petitioner to point out to us the financial position of the petitioner. In para 7 of the memo of writ petition, certain averments are made with regard to the financial position of the petitioner. With utmost respect, the averments made are with regard to the profit and/or loss incurred in one or two years by the assessee. The entire picture of the financial position of the petitioner has not been given. If the petitioner wanted to take benefit on the basis of the alleged undue hardship on account of the financial position, the petitioner ought to have given the details of the entire turnover of the years preceding the date of filing the appeal and of the current year, in which the appeal is filed. The petitioner ought to have shown the position as regards total assets and liabilities. The petitioner ought to have shown its liquidity position and the overdraft facilities availed of. The petitioner also ought to have shown the orders received in advance and the amount, if any, received in advance. The petitioner also ought to have shown the amount remaining outstanding and recoverable from different persons. No such details have been given and therefore, on the basis of too vague and general averments made in the writ petition, the case of the petitioner that the petitioner is suffering from financial hardship, cannot be accepted.;