2020 (11) TMI 235

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.... ORDER (PER ABHAY AHUJA) : 1. Heard. Rule. Rule made returnable forthwith. By the consent of the Counsel for the parties, the matter is taken up for final hearing. 2. Being aggrieved and dissatisfied by the inaction on the part of the Respondent authorities in not giving Input tax credit to the claim of the Petitioner pursuant to the Board Circular No. 39/13/2018-GST dated 3rd April, 2018, the Petitioner has sought to not only challenge the said inaction but also to challenge the vires of Rule 117 and Rule 118 of the Central Goods and Service Tax Rules, 2017 as null and void and ultra vires Section 140 (1), Section 140 (3) and Section 9 of the Central Goods and Services Tax Act, 2017 and Article 14, 19, 246, 248, 265, 268A, 286 and 302 read with entry 41 and 83 of list 1 of Schedule VII of the Constitution of India and as also being beyond the legislative competence of the Parliament under Article 269-A of the Constitution of India and has prayed for the following reliefs:- (a) that this Hon'ble Court may be pleased to issue Any writ, order or direction more particularly in the nature of a Writ of Declaration to declare Rule 117 and Rule 118 of Central Goods a....

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....MVAT on the sale of goods, filing returns and also availing credit/set off of MVAT. 5. Post introduction of the CGST Act, 2017 with effect from 01.07.2017, pursuant to the transitional provisions contained in Chapter XX of the CGST Act, 2017 as well as under Chapter XX of the Maharashtra Goods and Services Tax Act, 2017 ("MGST Act"), the Petitioner was entitled to carry forward Input tax credit as on 30.06.2017 in the TRAN-1 form for the period from 01.07.2016 to 30.06.2017 totaling an amount of Rs. 79,44,237.61/-, under Section 140 of the CGST Act read with Rule 117 of the CGST Rules and Rule 118 of the MGST Rules. 6. Petitioner submits that Section 140 of the CGST Act read with Rule 117 of the CGST Rules requires a migrated registered supplier to file a declaration (in electronic form) under form TRAN-1 intimating/disclosing details of CENVAT credit of tax paid on inputs, capital goods, input services in order to carry forward the same to the electronic credit ledger/input tax credit account under the CGST Act, 2017. The declaration/form was required to be filed within a period of 90 days from the appointed date i.e. 01.07.2017, which time limits were extended to 27.12.2017....

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....had submitted TRAN-1 manually for verification and requested Respondent No. 9 to activate TRAN-1 portal to enable Petitioner to file TRAN-1 electronically and to claim credit in electronic credit ledger. 14. Vide letters dated 11.12.2018, 12.12.2018 and 31.03.2019, Petitioner sent reminders to the Respondents with respect to its application made pursuant to the CBIC circular dated 3.04.2018. 15. Petitioner submits that since the Petitioner has not received any clarity from the Respondents with regard to the carry forward of the CENVAT credit in respect of its application, it has been left with no option but to file the present Petition as a result of the hardship caused to the Petitioner. Petitioner has also raised grounds challenging the vires of Rule 117 and Rule 118 of the CGST Rules as ultra vires Sections 140 (1), 140 (3) and Section 9 of the CGST Act as well as ultra vires the Constitution of India as mentioned above. 16. Respondents have filed reply submitting that the issue involved in the Petition is no more res-integra and is covered by the Judgment dated 20.03.2020 passed by this Court in the case of NELCO Limited V/s Union of India and Ors. (Writ Petition No. 6....

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.... heard learned counsel Shri Bharat Raichandani for the Petitioner and Shri Pradeep Jetley alongwith Shri J. B. Mishra for the Respondents. We have also perused the papers and proceedings in this Petition. 21. This is a case, where admittedly Petitioner could not file GST TRAN-1 on or before 27.12.2017 but had manually applied for GST TRAN-1 on 7.5.2018 as per Circular dated 03.04.2018 within the timeline as per the date extended by this Court. Also admittedly the Respondents have found the Petitioner to be eligible for credit amounting to Rs. 78,62,466/-. But the credit for the same has been denied as the ITGRC found that the Petitioner has not tried to save or submit or file TRAN-1 before 27.12.2017. We are informed by the learned counsel for the Petitioner which is not controverted by the learned Sr. counsel for the Respondents that this information of rejection of the Petitioner's application for manual GST TRAN-1 has not been communicated to the Petitioner despite several reminders/ communications from the Petitioner and it is only by way of the affidavit in reply filed to this Petition that the Petitioner has become aware of the rejection. 22. Be that as it may, it is tr....