Inordinate delay in adjudication of a show cause notice is fatal to its validity

Neelachal Ispat Nigam Ltd. Vs Union of India and others (Orissa High Court)

Case Background

Neelachal Ispat Nigam Limited (NINL), a joint venture company registered under the Companies Act, 1956, engaged in manufacturing pig iron, billets, coke, and crude tar, filed a writ petition challenging the validity of a demand-cum-show cause notice dated September 10, 2008. This notice was issued by the Central Excise Department, which claimed that NINL wrongly availed of Cenvat credit amounting to Rs. 39,17,30,118 after its merger with Konark Met Coke Limited (KMCL).

KMCL, a manufacturer of metallurgical coke and other products, merged with NINL on December 8, 2004, with all its assets and liabilities. At the time of the merger, KMCL had an unutilized Cenvat credit balance, which was transferred to NINL’s account after approval from the Jurisdictional Assistant Commissioner, Central Excise, Customs & Service Tax, Balasore Division.

Issues Raised

1. Delayed Adjudication: NINL contended that the show cause notice was issued on September 10, 2008, but it only came to the company’s attention in December 2017, almost nine years later, following a notice for a personal hearing. This inordinate delay in adjudication, according to NINL, rendered the notice invalid as per the provisions of Section 11A of the Central Excise Act, 1944.
2. Limitation: NINL argued that the entire claim was barred by limitation. The notice, issued almost four years after the merger and the transfer of Cenvat credit, was not acted upon promptly, thus violating the statutory requirement to determine duty within one year (extended to two years in 2016 amendments) from the date of notice, especially in cases involving alleged suppression of facts.
3. No Communication: The petitioner highlighted that there was no communication from the Department during the intervening period between the issuance of the show cause notice and the subsequent personal hearing notice. This lack of communication led to significant prejudice against the petitioner.

Legal Proceedings and Contentions