Pre-deposit waiver on cashew nut manufacture dispute; prima facie case found under the excise test of commercially different commodity.

Pending appeal, waiver of pre-deposit and stay of recovery were granted because the Tribunal found a prima facie case on the manufacture issue arising from roasting, salting, flavouring and packing cashew nuts. It noted that earlier authority on excise manufacture had applied the same test-whether a commercially different commodity emerges-and supported the appellant's challenge. The departmental decision relied on was distinguished as dealing with tariff classification only, not the manufacture question. On that basis, the duty and penalties were stayed and the appeal was listed for out-of-turn hearing.

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Issues: Whether, pending appeal, the appellant was entitled to waiver of pre-deposit and stay of recovery of the duty and penalties arising from the classification dispute and the allegation that the roasting, salting, flavouring and packing of cashew nuts amounted to manufacture.

Analysis: The Tribunal found that, on the face of the record, the identical process and commodity had already been considered in earlier authority applying the same test of manufacture under excise law, namely whether a commercially different commodity emerges. It also noted that the contrary authority relied upon by the department was concerned with tariff classification and did not decide the manufacture issue. The cited decisions therefore furnished a prima facie basis for the appellant's challenge.

Outcome: Pre-deposit was waived and recovery of the duty and penalties was stayed; the appeal was posted for out-of-turn hearing.

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