2019 (12) TMI 1162 - HC - GST

Dismissal of Challenge to CGST Rule 117 Constitutional Validity; Petitioner Granted Opportunity to Apply to GST Council

The High Court dismissed the challenge to the constitutional validity of Rule 117 of the CGST Rules but granted the petitioner liberty to apply before the ... Extension of time for filing of Form GST TRANS-1 - transitional credit - Rule 117 of the CGST Rules - HELD THAT:- The challenge to the constitutional validity of Rule 117 no more being res integra, this Court cannot entertain such prayer and accordingly reject the same, however, considering the fact that the Union of India and the Finance Department have extended the period contemplated under Rule 1A of Rule 117 till 31st December, 2019, we grant liberty to the petitioner to make an application before GST Council (through Standing Counsel, who is further requested to hand over the same to the jurisdictional officer) for forwarding the same to the GST Council to issue requisite certificate of recommendation alongwith requisite particulars, evidence and a certified copy of the order instantly and such decision be taken forthwith and if the petitioner’s assertion is found to be correct, the GST Council shall issue necessary recommendation to the Commissioner to enable the petitioner to get the benefit of CENVAT credit within the stipulated time as stipulated by the Union of India i.e on or before 31st December, 2019. Application disposed off. Issues:1. Challenge to Rule 117 of the CGST Rules2. Constitutional validity of Section 140(3) of CGST Act and proviso to Rule 1173. Extension of last date for submitting GST TRANS-14. Procedure for making application through GST counsel5. Liberty granted to petitioner to make application before GST CouncilAnalysis:1. The petitioner sought a writ of mandamus to allow filing of declaration in form GST Trans-1 to claim transition credit of eligible duties under Section 140 of the Central Goods and Service Tax Act, 2017. Additionally, a prayer was made to declare Rule 117 of the CGST Rules as violative of Constitutional provisions and to direct the respondents to revive the facility of filing TRANS-1 on the common portal.2. The Revenue's counsel referred to a Division Bench judgment in a similar matter where the challenge to Rule 117 was held to be settled following a decision by the Gujarat High Court. The constitutional validity of Section 140(3) of CGST Act and the proviso to Rule 117 were also challenged but dismissed. Consequently, the High Court could not entertain the prayer challenging the constitutional validity of Rule 117.3. The Union of India had extended the last date for submitting GST TRANS-1 until 31st December, 2019. However, the procedure under Rule 117 required the petitioner to apply through the GST counsel, who would then recommend to the Commissioner for further action. A previous judgment by the High Court was cited in this regard.4. Considering the submissions made, the High Court rejected the challenge to the constitutional validity of Rule 117 but granted liberty to the petitioner to apply before the GST Council through the Standing Counsel. The recommendation from the GST Council, if found correct, would enable the petitioner to benefit from CENVAT credit within the extended deadline of 31st December, 2019.5. The writ application was disposed of based on the directions provided, allowing the petitioner to pursue the necessary steps to claim the transition credit within the stipulated timeframe as extended by the Union of India.