2006 (8) TMI 118

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..... the assessee has clandestinely removed the marble slabs from the factory without payment of excise duty in order to evade the levy. 2.  At the time when the proceedings were originally initiated, the department as well as the assessee both were labouring under the impression that cutting of marble blocks into marble slabs and tiles amounted to the manufacturing activity and invited levy of duty under the Central Excise Act in respect of end product removed from factory. On that premise, the contest was carried only about the levy of penalty. The tribunal reduced the penalty by considering that the assessee has deposited the amount of Duty demanded vide adjudicating order dated 21.11.1997. However, interest liability was not reduced. T .....

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..... ocks as falling beyond the pale of Central Excise Act and consequential levy of penalty being ultra vires the provisions of the Act claimed refund of the amount already paid by them and also sought a direction that the respondents do not recover other outstanding amount as a consequence of the levy of duty on activity of cutting of marbles block into marble slabs. 6.  While on the merit of the issue, there is no contention, it is urged by the revenue that since the assessee has not disputed its liability during the pendency of the assessment proceedings and had admitted his liability to Duty, he is now precluded from raising this issue. 7.  We are unable to accept this contentio firstly because there cannot be any estoppal again .....

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..... remedy of appeal was not available to the assessee and in such circumstances, the only remedy was available before the assessee to approach this Court to get his remedy, against ultra vires levy. 12. It is not a case where the assessee has asked for refund merely on the basis of later judgment of Supreme Court but has come before the Court challenging the order levying Duty and Penalty itself, albeit by invoking extra ordinary jurisdiction, which in the circumstances, he could invoke justifiably. 13.   As a result, we are unable to sustain the objection raised by the learned counsel for the respondents as to maintainability of this petition. 14.  On merit there being no dispute about the fact that in view of law declared b .....

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