TMI Blog2006 (8) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition is directed to challenge the order passed by Central Custom Excise Gold Control Appellate Tribunal, New Delhi dated 23.2.2001 affirming the order passed by adjudicating authority levying duty on the Marble slabs and tiles alleged to have been removed from the factory of the assessee without payment of Excise Duty and also levying penalty under Section 11AC of the Central Excise Act by holding that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Aman Marble Industries Pvt. Ltd. Vs.Collector of Central Excise, Jaipur , since reported in 2003 (157) E.L.T. 393, the petitioner having discovered the mistake in assessing that levy of excise duty is authorized on manufacture of marble slabs and tiles filed this writ petition challenging the order passed by Central Excise authorities imposing duty on the activity of making marble slabs from marble blocks 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odied in Article 265, for levy and collection of tax, authority of law is needed and the levy and collection without authority of law is ultra vires and void. 10. In the circumstances, the petition cannot be said to be suffering from latches as until the decision of the Supreme Court, both the parties were labouring under the same mistake. 11. Moreover, there being no contest before the Appellate Authority the 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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