Marketability of factory waste controlled interim excise relief where mere internal use did not prove excisability.

Interim relief on excise demand depends on whether the department has made out a prima facie case that the disputed product is marketable and therefore excisable. The Tribunal held that mere internal use of waste within the factory did not by itself establish marketability, and relied on an earlier view that the same commodity was not marketable. On that basis, the assessee established a prima facie case, and waiver of predeposit of duty and penalty was granted with recovery stayed.

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Issues: Whether the assessee was entitled to waiver of predeposit and stay of recovery on the demand of duty and penalty, in view of the contention that the disputed waste product was not marketable and therefore not excisable.

Analysis: The demand was founded on the view that the waste called "broke" was classifiable as pulp and paper waste and liable to duty. For grant of interim relief, the relevant consideration was whether the department had shown, prima facie, that the product was capable of being bought and sold. Mere use of the waste within the factory did not by itself establish marketability. The earlier Tribunal view that the same commodity was not marketable also supported the assessee's case.

Conclusion: The assessee made out a prima facie case for relief. Deposit of the duty and penalty was waived and recovery was stayed.

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