Prima facie non-marketable oxygen in continuous manufacture justified waiver of pre-deposit and stay of recovery.

Oxygen separated from ambient air and used immediately in a continuous paper-pulp manufacturing process, without compression or storage, was treated as a non-marketable product on the available record. On that basis, the appellant was found to have established a prima facie case for waiver of pre-deposit and interim protection against recovery of duty confirmed on oxygen consumed in manufacture. The applications for waiver of pre-deposit were allowed and recovery was stayed pending disposal of the main appeals.

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Issues: Whether the appellant had made out a prima facie case for waiver of pre-deposit and stay of recovery in respect of the duty confirmed on oxygen consumed in the manufacturing process.

Analysis: The appellant extracted oxygen from ambient air and used it in a continuous process for manufacture of paper pulp, without compressing or storing the oxygen. On the available record, the separation of oxygen and nitrogen was treated as part of a continuous process and the oxygen was considered, prima facie, to be a non-marketable product. In these circumstances, the appellant was found to have established a prima facie case warranting interim protection.

Conclusion: The applications for waiver of pre-deposit were allowed and recovery was stayed till disposal of the appeals.

Final Conclusion: Interim relief was granted in favour of the appellant, with protection against recovery pending disposal of the main appeals.

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