TMI Blog2010 (4) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - 1953 OF 2010, 3674 OF 2010 - - - Dated:- 29-4-2010 - WRIT PETITION NO.1953 OF 2010 M/s.Ispat Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on 11 September 2009 by the Joint Secretary to the Government of India holding that Ispat is entitled to a rebate of education cess paid on exported goods. 2. The facts in so far as they are relevant to the controversy in this case are thus: Ispat claims to have exported HR coils of steel on the payment of applicable excise duty including education cess between 9 July 2004 and 6 September 2004. On 8 September 2004, Ispat lodged a rebate claim for exports made between 10 August 2004 and 24 August 2004 in the amount of Rs.2.81 crores including excise duty and education cess. On 30 November 2004, the Deputy Commissioner of Central Excise allowed the claim, to the extent of rebate of basic excise duty in the amount of Rs.1.82 crores but declined to grant a rebate on the education cess paid in the amount of Rs. 5.52 lakhs. The Assessing Authority held that the duty paid by way of education cess was admissible for a rebate only with effect from 6 September 2004 under Notification No.19/2004NT and since the goods were exported by Ispat prior to that date, rebate on education cess cannot be allowed. Apart from the claim for rebate filed on 8 September 2004, Ispat had filed four other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity on 11 September 2009. Ispat also challenges the order passed on 30 November 2004 by the Assessing Authority declining to grant a claim of rebate in respect of the education cess and the notice to show cause dated 20 December 2009. In the petition filed by Ispat, an affidavit has been filed by the Deputy Commissioner of Central Excise, in which it has been stated that the rebate claims filed by Ispat were allowed on 30 November 2004 only to the extent of a refund of basic excise duty but the claim for refund of education cess was specifically rejected. It has been averred that Ispat did not challenge the order disallowing the claim of refund in respect of the payment of education cess but instead, chose to file a fresh application dated 20 December 2005. The affidavit records that as a matter of fact the other four applications which were made in the year 2004 by Ispat had also been rejected and the orders passed by the Assessing Authority had not been challenged. The affidavit inter alia adverts to the inaction / laches on the part of Ispat in not filing appeals before the Commissioner (Appeals) against the rejection of its claims and it has been submitted that in order to cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. All that the application discloses was that the rebate applications were allowed only for basic excise duty 'and the amount of education cess involved was retained by you for the reason that the education cess is not a part of the excise duty'. Instead reliance was placed on an order passed by the Commissioner (Appeals) in the case of some other assessee. The consequence of the failure of Ispat to make a disclosure of the order dated 30 November 2004, while preferring its application dated 20 December 2005 is that all authorities who dealt with that claim proceeded on the basis that the application was being filed for the first time. There is undoubtedly also a lapse on the part of the authorities in doing so. The orders of the Assessing Authority dated 28 December 2006, of the Commissioner (Appeals) dated 24 June 2007 and of the revisional authority dated 11 September 2009 are all silent on the admitted position that the application filed by Ispat had originally been rejected on 30 November 2004. As a matter of fact, if the applications were to be filed for the first time on 20 December 2005 they would have barred by the limitation of one year prescribed in Section 11B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction under Article 226, but this bar is by no means absolute or inflexible. The powers of the Court under Article 226 to safeguard against a miscarriage of justice cannot be stratified by inflexible norms. Equally, as the Constitution bench of the Supreme Court held in A.V. Venkateswaran, Collector of Customs, Bombay V/s. Ramchand Sobhraj Wadhwani {1983 (13) E.L.T. 1327 (S.C.),} 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 (at Para 11). 10. In the present present, the petitioner (i) did not contest the correctness of the determination made by the Deputy Commissioner of Central Excise on 30 November 2004 and thereafter rejecting the claim for rebate on the payment of education cess; (ii) Moved an application on 20 December 2005 despite the rejection made on the earlier occasion on the same issue; and (iii) Suppressed the material circumstance of the rejection of the earlier application. In these circumstances, this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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