TMI Blog2007 (10) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as writ petition pertaining to one and the same issue, thus both the cases were heard and decided by this common judgment. 2. In reference petition, moved under Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944'), petitioner has prayed for framing following substantial question of law for decision :- "Whether cutting of marbles block into slabs is not amounting to manufacture in terms of Section 2(f) of Central Excise Act, 1944 and thus levy of excise duty and penalty from the petitioner is illegal and without jurisdiction." 3. For the purpose of above question, it has been contended that the Central Excise Officer of Udaipur Division visited factory premises of the petitioner on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1944, mainly on the ground that in the case of Aman Marbles Industries Pvt. Ltd. v. C.C.E., Jaipur [2003 (157) E.L.T. 393 (S.C.)] Hon'ble Apex Court has laid down that cutting of Blocks into marble slabs does not amount to manufacturing in terms of Section 2(f) of the Central Excise Act of 1944. Therefore, according to the reference petitioner, the order passed by the Tribunal is not sustainable and the reference should be called and decided in favour of the petitioner on the substantial question of law formulated in the petition. 5. Per Contra, learned counsel appearing for the Union of India, urged that the substantial question of law formulated by the petitioner is not attracted on the facts of the case. It was contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hortage in the finished goods had arisen due to storage of marble for a long period, more specifically due to the wear and tear of the product. Therefore, in absence of any material to substantiate the argument, the Tribunal has dismissed the appeal preferred by the petitioner. It was thus, prayed that the reference petition preferred by the petitioner involves no substantial question of law, thus deserves to be dismissed. 6. We have considered the rival submissions of the learned counsel for the parties and carefully examined the matter to find out as to whether any substantial question of law is involved in the present matter so as to call for reference and decide the legal issue. 7. The only argument raised by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case, even the substantial question of law framed in the reference petition does not arise in the facts of the case. Hence, we are of the opinion that no substantial question of law exists in the present matter. There fore, the reference petition deserves to be dismissed and the same is hereby dismissed. 9. Coming to the writ petition, the learned counsel for the petitioner has submitted again that in view of the judgment of the Apex Court in the case of Aman Marble Industries Pot. Ltd. v. C.C.E., Jaipur, the petitioner was entitled for refund of amount paid pursuant to the judgment of the Tribunal under challenge. Since we have already expressed our view that the judgment in the case of Aman Marble Industries Pot, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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