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2010 (4) TMI 169 - HC - Central ExciseRefund of education cess – department rejected a refund of education cess of Rs.5.52 lakhs as inadmissible to the company - Ispat had moved an application for a rebate in respect of the component both of the basic excise duty and the education cess initially on 8 September 2004. The claim for rebate to the extent of education cess was rejected on 30 November 2004. The claim for rebate was allowed only in respect of the basic excise duty. Ispat had moved four other applications in which the same view was taken by the Assessing Authority and, as a matter of fact, cheques were received by Ispat representing the quantum of rebate only in respect of the component of basic excise duty. Ispat chose not to challenge the order passed by the Deputy Commissioner of Central Excise on 30 November 2004 rejecting the claim of rebate in respect of education cess. No appeal was filed against that order. Ispat received and accepted the cheques in the other claims and did not challenge the denial of the rebate qua education cess. On 20 December 2005, over a year after passing of the first order an application was moved before the Assessing Authority seeking a rebate in respect of education cess. Held that: if a petitioner has disabled himself from availing himself of a statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour - In these circumstances, this Court in the exercise of its jurisdiction under Article 226 would be duty bound to correct what would otherwise have been a manifest failure of justice originating in an abuse of the process of law by Ispat. The challenge by Ispat to the order dated 30 November 2004, addressed before the Court in a petition filed on 6 March 2010, suffers from unexplained delay. Apart from the reasons, which we have already indicated, we do not consider it appropriate to exercise the writ jurisdiction under Article 226 in favour of a petitioner, who is guilty of an abuse of process and of unexplained delay.
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