Fly ash non-excisability controls stay relief where marketability alone does not establish manufacture.

Fly ash generated in a power plant was treated as non-excisable, because marketability alone did not establish manufacture. The Tribunal relied on Supreme Court authority holding fly ash to be non-excisable and noted that the Revenue had not shown a sufficient prima facie case to justify stay against the order setting aside the excise demand. The stay petition was therefore dismissed.

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Issues: Whether fly ash generated in the power plant was a manufactured and excisable product so as to justify grant of stay against the order setting aside the excise demand.

Analysis: Fly ash was held by the lower appellate authority to be non-excisable. The Tribunal noted that mere marketability of fly ash did not establish manufacture and relied on the Supreme Court decision holding fly ash to be non-excisable. In view of that position, the Revenue did not establish a case for stay of the impugned order.

Outcome: The stay petition was dismissed.

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