TaxTMI 
TaxTMI 
2020 (3) TMI 728
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....mounting to Rs. 23,27,063/- in S.B.C.W.P. No. 440/2020 and Rs. 85,41,755/- in S.B.C.W.P. No. 266/2020 as on the appointed date i.e. 01.07.2017 in terms of Section 140 of the Central Goods and Service Tax Act, 2017 ('CGST Act'). It is, inter alia, indicated in the writ petitions that petitioners had purchased goods prior to the appointed date i.e. 01.07.2017, which were held in stock on the appointed date. The provisions of Chapter-XX of the CGST Act provided for transitional provisions for transition of credit from erstwhile indirect tax regime to GST regime, which inter alia provided that a registered person who was not liable to be registered under the provisions of the Central Excise Act, 1944 ('the Act of 1944') is entitled to take credit of eligible duties in respect of input held in stock on the appointed day subject to fulfillment of the conditions set out therein. It is submitted that the provision of Section 140 of the CGST Act is a complete Code in itself and the same does not provide for eligibility subject to any further conditions. Rule 117 of the Central Goods and Service Tax Rules, 2017 ('CGST Rules') was framed for allowing carry forward of the eligible duties....
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....ceived from the Joint Secretary, GST Council were annexed. It is, inter alia, submitted by counsel for the petitioners that the action of the respondents in denying the credit to the petitioners, entitlement whereof is not in dispute, only on account of the fact that due to technical glitches the petitioners could not file the requisite Form GST Tran-1 in the window provided by the Rule 117 of the CGST Rules, is not justified. It was submitted that the respondents without taking into consideration the submissions made in this regard as well as various judgments of various High Courts directing grant of credit, have rejected the representation made by the petitioners, pursuant to the directions given by this Court that also based on the determination made prior to the order passed by this Court. Further submissions were made that the petitioners have vested right to seek credit once the duties for taxes have been paid by the petitioners. The procedure providing for limitation despite the fault/defect on part of the department to make available requisite system for taking the credit, the action in denying the credit cannot be sustained. Submissions were also made that var....
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....nd reopening of the portal for the purpose. Further submissions were made that the allegations made about the technical glitches and that the assesses were generally denied the credit on account of such glitches is baseless as huge number of Form GST Tran-1 were filed and credit was given. Submissions were made that no vested right has been taken away, only a time limit has been fixed and, therefore, the various pleas raised in this regard cannot be sustained. Reliance was placed on judgment in Osram Surya (P) Ltd. v. Commr Central Excise, Indore : 2002 (9) SCC 20, JCB India Ltd. v. Union of India : Case No. 3142/2017, decided on 20.03.2018 by Bombay High Court, ALD Automotive Pvt. Ltd. v. Commercial Tax Officer & Ors. : AIR 2018 SC 5235, Willowood Chemicals Pvt. Ltd. v. Union of India : Special Civil Application No. 4252/2018, decided on 19.09.2018, wherein, the constitutional validity of second proviso to Section 140(1) of the CGST Act and Rule 117 of the CGST Rules has been upheld. It was prayed that the writ petitions be dismissed. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. As notic....
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.... 27.12.2017 and such attempt failed due to technical glitches on the common portal. Further the petitioners were required to submit a certificate/recommendation issued by GST Council in this regard and with reference to para 12 of the judgment in the case of Jodhpur Truck Pvt. Ltd. (supra), the form was ordered to be accepted and the GST Council was required to issue their requisite certificate within a period of 15 days if the petitioners' assertion was found correct and in case the petitioners were not entitled for the requisite, the Council was required to pass an order giving reasons. The above directions are explicit, wherein, on a representation made by the petitioners the GST Council was required to issue requisite certificate/recommendation in terms of para 12 of the judgment in the case of Jodhpur Truck Pvt. Ltd. (supra). Para 12 of the judgment in the case of Jodhpur Truck Pvt. Ltd. (supra) reads as under:- "12. A bare look at the above-quoted provisions leaves no room for ambiguity that an assessee can be permitted to furnish offline GST TRAN-1 form subject to fulfilling all the three conditions, mentioned hereinfra : (i) the assessee failed to up....
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....13.11.2018 and 01.08.2019 for further needful action in such cases. You may consider filing an appeal in terms of CBIC (Legal) letter F. No. 276/187/2018- CX. 8A Part dated 20.11.2018. In case any new facts has emerged in view of Para 2 above, in these cases, the same may be brought to the notice of this office. 6. This issues with the approval of Competent Authority. Yours Faithfully, sd/- Encl : as above (Dheeraj Rastogi) Joint Secretary, GST Council" A perusal of the above communication dated 12.12.2019 reveals that the GST Council referred to the ITGRC meeting, wherein, cases of the petitioners were considered and indicated that their cases fell in B-1 category and B-1 category has been described as 'as per GST system log, there are no evidences of error or submission/filing of Tran-1'. It appears that as regard the status of filing/submission of Form GST Tran-1 on part of the petitioners is concerned, it had already been considered by the ITGRC meeting held on 26.10.2018 in the case of S.B.C.W.P. No. 226/2020 and the said aspect was not brought to the notice of the Court while passing the order dated 21.11.2019 requiring making of the rep....