Marketability test for tailor-made girders led to only partial waiver of pre-deposit, with conditional interim relief granted.

CESTAT New Delhi held that the appellant had not established a prima facie case for complete waiver of pre-deposit under section 35F. Applying the marketability test, the order noted that actual sale is not necessary and that marketability does not depend on the number of buyers. Although the pre-cast structural components and girders were tailor-made for the DMRC project, the tribunal treated DMRC as the obvious buyer and considered the goods prima facie marketable excisable goods under Chapter sub-heading 6810 91 00. Partial waiver was therefore granted only on condition of a deposit of Rs. 55,00,000, with recovery of the balance stayed on compliance.

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Issues: Whether the appellant made out a prima facie case for complete waiver of pre-deposit in respect of duty, fine and penalty, and whether the pre-cast structural components/girders were prima facie marketable excisable goods.

Analysis: The appellant sought full waiver of pre-deposit under section 35F. The goods in question were treated as falling under Chapter sub-heading 6810 91 00 and the only substantial controversy was marketability. The governing test applied was whether the article is known to the market as such and whether actual sale is necessary; the order noted that actual marketing is not essential and that marketability does not depend on the number of buyers. On the facts, the girders were tailor-made for the DMRC project, but the order held that DMRC was the obvious buyer and that the cited authorities supported the Revenue's view that such goods can still satisfy the test of marketability.

Conclusion: The appellant was held not to have established a prima facie case for complete waiver of pre-deposit. Partial waiver was granted on condition of a deposit of Rs. 55,00,000, with recovery of the balance stayed on compliance.

Final Conclusion: The application for waiver was not accepted in full, and only conditional interim relief was granted with a direction to deposit a substantial part of the demand.

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