Marketability test for fly ash defeated duty demand; waiver of pre-deposit granted on strong prima facie case.

Fly ash generated from burning coal in a boiler was examined for prima facie excisability and marketability for purposes of duty and pre-deposit. The text states that fly ash, as a residue arising in manufacture, was not shown by tangible evidence to be marketable, and mere inclusion under a tariff heading did not by itself establish excisability. The burden to prove marketability lay on the department, and that burden was not discharged. Relying on prior decisions treating boiler ash or coal ash as non-excisable, the tribunal found a strong prima facie case and granted waiver of pre-deposit of duty, interest and penalty, with recovery stayed.

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Issues: Whether fly ash arising from burning of coal in the boiler was prima facie excisable and marketable so as to justify confirmation of duty and refusal of waiver of pre-deposit.

Analysis: The fly ash was a residue generated in the course of manufacture and was not shown by any tangible evidence to be marketable. Mere coverage under a tariff heading did not make it excisable unless marketability was established. The burden to prove marketability lay on the department, and that burden was not discharged. Prior decisions holding boiler ash or coal ash to be non-excisable supported the assessee's case for interim relief.

Conclusion: The assessee made out a strong prima facie case. Waiver of pre-deposit of duty, interest and penalty was granted and recovery was stayed.

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