2019 (4) TMI 302

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.... appointed for undertaking audit of the Cenvat credit i.e., to verify the availment and utilization of Cenvat credit for the period April 2016 to June 2017 it was realized that it had inadvertently not reported credit of certain eligible credits in ER-1 and consequently in FORM GST TRAN-1, which had been recorded in the books of accounts. On further investigation, it is said to have been noticed by the petitioner that due to change in ERP software in 2016-17, an error in reporting of credit occurred, credit pertaining to Countervailing duty and Special Additional Duty. The petitioner approached the Jurisdictional Officer and filed a letter explaining that the petitioner has inadvertently omitted recording of eligible credit and requested the officer to allow the petitioner to avail the said credit in their electronic credit ledger but in vain. Pursuant to the circular instructions issued by the Government of India, Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs dated 03.04.2018, the petitioner has approached the Nodal Officer who in turn directed the petitioner to seek the redressal of remedy before the jurisdictional officer. Accordingly, the....

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....e been considered by the respondent - Authorities. Denial of revision of declaration in FORM GST TRAN-1 would result in disentitlement of the credit to the petitioner defeating the object of Transitional arrangements. 9. To analyze the issue at hand, it is apt to refer to the relevant provisions of the Act and Rules to arrive at a decision as far as the relief sought in the writ petition is concerned. 10. Section 140 of the Act, 2017 deals with Transitional arrangements for input tax credit and the same reads thus:   "140. Transitional arrangements for input tax credit. (1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed: Provided that the registered person shall not be allowed to take credit in the following circumstances, namely:- (i) where the said amount of credit is not admissible as input tax credit under this Act; or (ii) where he has not furnished all the ret....

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.... Act contemplates regarding removal of difficulties and the same is quoted here under for ready reference: "172. Removal of difficulties [1] If any difficulty arises in giving effect to any provisions of this Act, the Government may, on the recommendations of the Council, by a general or a special order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for the purpose of removing the said difficulty: PROVIDED that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act. [2] Every order made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament." 15. A comprehensive reading of these provisions harmoniously, would indicate that Rule 117 of the Rules provides for submitting a declaration electronically in FORM GST TRAN-1 within 90 days from the appointed day on the common portal specified therein, separately, the amount of input tax credit to which the registered person is entitled to take input tax credit under Section 140. The Commissioner is....

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....r even accept a fresh TRAN-1. 3. We note that the human errors such as one which is arising in the present Petition are likely to have taken place in other cases also. At times these mistakes in keying in the correct figures would work in favour of the State and at other times in favour of Assessee. According to learned Counsel for both sides, there is no provision in the Act, which allows correct in/rectification of such errors. 4. During the course of hearing, our attention is drawn to Section 172 of the Act which inter alia provides for removal of difficulties which may arise during the implementation of the Act. 5. In the above view, it appears to us that it would be appropriate that the Central Government issues a general and/or special order under Section 172 of the Act addressing the above issue on general or special basis, taking into account the ground realities. 6. In the above view, at the request of Shri. Jetly, the learned Counsel appearing for the Respondents No.1 and 3, the Petition is adjourned to 10th October 2018." Order dated 24.10.2018: "3. Respondents have filed an affidavit in reply of Mr. Milind Gawai, Commissioner, Central Tax, Pune-1 Pune dated 23rd O....