TaxTMI 
TaxTMI 
2020 (3) TMI 66
X X X X Extracts X X X X
X X X X Extracts X X X X
.....1 with respect of input credit (CENVAT Credit) of an amount of Rs. 1,59,55,594/and restrain the respondent from cancelling the GST registration and command the respondent to square off the amount of Rs. 1,59,55,594/of CENVAT Credit towards the CGST liability, if any. Or in the alternative (AA) command the respondents to open the Electronic Portal to enable the petitioners to file GST TRAN - 1 online. (B) During the pendency and final disposal of this petition. i) direct the respondents to consider the physical copy of form GST TRAN - 1 sent on 30/1/2019 at Annexure A hereto and to give credit to the petitioners with respect of input credit (CENVAT Credit) of an amount of Rs. 1,59,55,594/. ii) direct the respondents to open the Electronic Portal to enable the petitioners to file GST TRAN - 1 online. iii) restrain the respondents from taking any coercive action against the petitioners pursuant to notice dated 13/06/2019 from raising demand ignoring the amount of CENVAT Credit of Rs. 1,59,55,594/. iv) restrain the respondent from cancelling the GST registration and direct the respondent to square off the amount of Rs. 1,59,55,594/of CENVAT Credit towards the CGST....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., therefore, entitled to CENVAT credit as per register ER1. 11 Learned advocate for the petitioners submitted that there is no fault on the part of the petitioners so as to upload form TRAN 1 and only due to technical glitches on the part of the respondents, the petitioners could not upload form TRAN1. Learned advocate for the petitioners relied upon the decision of a Coordinate Bench of this Court in the case of M/s Siddharth Enterprises vs. The Nodal Officer in Special Civil Application No.5758 of 2019 and allied matters decided on 6th September 2019 to contend that the respondents may be directed to permit the petitioners for uploading the declaration in form TRAN1 so as to enable the petitioners to claim credit of CENVAT as per Section 140 of the CGST Act, 2017. It was further pointed out that the review applications filed by the respondents in the aforesaid writ petition were also rejected vide order dated 14th February 2020. 12 Learned advocate for the petitioners also relied upon the order No.01/2020GST dated 7th February 2020 of Central Board of Indirect Taxes and Customs with regard to extension of time limit for submitting the declaration in form GST TRAN 1 under Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0. The liability to pay GST on sale of stock carried forward from the previous tax regime without corresponding input tax credit would lead to double taxation on the same subject matter and, therefore, it is arbitrary and irrational. 41. C.B.E. & C. Flyer No.20, dated 1.1.2018 had clarified as under : "(c) Credit on duty paid stock : A registered taxable person. Other than manufacturer or service provider, may have a duty paid goods in his stock on 1st July 2017. GST would be payable on all supplies of goods or services made after the appointed day. It is not the intention of the Government to collect tax twice on the same goods. Hence, in such cases, it has been provided that the credit of the duty/tax paid earlier would be admissible as credit." 42. Article 300A provides that no person shall be deprived of property saved by authority of law. While right to the property is no longer a fundamental right but it is still a constitutional right. CENVAT credit earned under the erstwhile Central Excise Law is the property of the writapplicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. It could have been appropr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ile in the case on hand, this Court has not declared the said Rule 117 of the CGST Rules, 2017 neither this Court has ordered the respondents to carry forward CENVAT credit beyond the time limit, but in the case on hand, the respondents herein had tried to upload form GST TRAN1, but it could not be filed on account of technical glitches in terms of poor network connectivity and other technical difficulties at common portal. Under the circumstances, this Court has gone into the question that in such circumstances what would be the remedy if a person who tries to follow Rule 117 of the CGST Rules, 2017 but, without there being any fault on his side he could not upload the form due to technical glitches. Therefore, this Court has followed the judgement in the case of Filco Trade Centre Pvt. Ltd. (supra), wherein, after relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid tax on the raw materials or the inputs and that right would continue by way of CENVAT credit. The CENVAT credit is therefore indefeasible. Following the said....