TaxTMI 
TaxTMI 
2022 (8) TMI 865
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....ioner are as follows: (i) The petitioner is registered to Central Excise which, with effect from 01.07.2007, stood subsumed into Goods and Service Tax (GST) law. (ii) It is entitled to transition of various components of ITC in terms of Section 140 of the Central Goods and Service Tax Act, 2017 (in short 'CGST Act'). (iii) The petitioner claims entitlement of the amounts of Rs.16,21,227/- and Rs.4,24,136/- as per proviso to Section 140(1), the aforesaid components representing the closing balance of CENVAT credit as per their returns for the months of June 2017 and for service tax for the period April to June 2017. (iv) A time limit was fixed in regard to the availment of transition under Rule 117 of the Central Goods and Services Tax Rules, 2017 (in short 'CGST Rules'). (v) The Rule provided that every GST registrant who claimed transition of credit in terms of Section 140 of the Act is to file a declaration in Form GSTR TRAN-1 in the common GST Portal within 90 days from 01.07.2017 i.e. 21.09.2017. (vi) The time limit stood extended on several occasions to provide for the technical glitches plaguing the systems....
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....an have no recourse or time to seek revision of the same. 6. In this regard, the petitioner would rely on a decision of a Division Bench of this Court in the case of Commissioner of GST & C. Ex., Chennai South Vs. Bharat Electronics Ltd., [(2022) 58 GSTL 514]. The order , at the first instance, had been authored by me in the case of Bharat Electronic Ltd. Vs. Commissioner of GST & C. Ex., Chennai South Commissionerate, [(2021) 52 GSTL 261]. I have had occasion to deal with an identical factual situation as in the present case except in regard to the error that was occasioned, which is immaterial to decide the primordial issue that arises for resolution. 7. The crux of the decision was that, the timelines for uploading of TRAN 1 for seeking of credit as well as seeking revision of the credit cannot be one and the same as this leads to an unworkable position. In that view of the matter, the prayer of that petitioner had been accepted, directing the respondent to enable filing of revised TRAN 1 by opening of the portal within eight weeks from that order. 8. A Division Bench of this Court has affirmed the aforesaid order on 18.11.2021, as against which the Union, I am given to....
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.... to this view. The fact that such time limit may be extended under circumstances specified in Rule 117, including Rule 117A, does not lead to the sequitur that there is no time limit for transitioning credit. In this context, reference may be made to Section 16(4) of the CGST Act which provides as follows: "Section 16(4): A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under Section 39 for the month of September following the end of the financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier." The above provision is indicative of the legislative intent to impose time limits for availing ITC. Besides, Section 19(3)(d) of the TNVAT Act itself imposed a time limit for availing ITC and further provided that it would lapse upon expiry of such time limit. In our view, keeping the above statutory backdrop in mind, in the context of Transitional ITC, the case for a time limit is compelling and disregarding the time limit and permitting a party to avail Transit....
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....ly, if construed as directory, it would adversely impact the Government's revenue interest, including the predictability thereof. On weighing all the relevant factors, which may be not be conclusive in isolation, in the balance, we conclude that the time limit is mandatory and not directory. 11. Learned Standing Counsel thus argues that the only recourse available to an assessee is by challenging Rule 120A and in the absence of such challenge, relief as sought for by it, cannot be granted. 12. Per contra, learned counsel for the petitioner would draw my attention to a subsequent decision in the case of Amplexor India Pvt. Ltd. Vs. Union of India, [(2021) 2 TMI 477], wherein the validity of the retrospective amendments to Section of CGST Act and Rule 117 of the CGST Rules have been assailed. The same Bench that had passed the order in the case of P.R.Mani Electronics (supra) has admitted the matter, framing the following questions for resolution. . . . . . . 6. Upon consideration of the submissions of the learned counsel for the appellant, we are of the opinion that the following questions arise for consideration in these writ petitions: (1) Whet....
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....ment of the Apex Court in the case of Jayam and Company v. Assistant Commissioner, reported in 2018 (19) GSTL 3 (SC) and in particular, pointed out that paragraph 8 thereof was not brought to the attention of this Court on the earlier occasion. In addition, he adverted to the statement of objects and reasons of the CGST Act in order to contend that the primary object was to prevent the cascading of taxes and that the relevant provisions viz., Section 140 of the CGST Act and Rule 117 of the CGST Rules should be interpreted by keeping in mind the said object and purpose. 14. The petitioner also relies on a decision passed by the Division Bench of the Delhi High Court in Brand Equity Treaties Ltd. Vs. Union of India and Others, [(2020 38 GSTL 10] particularly para 20 thereof. The Division Bench of the Delhi High Court was concerned with the prayer of mandamus seeking permission to transition accumulated CENVAT credit, seeking extension of the timelines for availment of credit. 15. The original prayer challenging the vires of the provisions of the Act and Rules were given up and the High Court was persuaded to accept the alternate prayer sought. The Bench notes that the GST regim....
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....tion of such credit by migrating the same to the GST regime by way of filing declarationForm TRAN-1. The manner and procedure to carry forward the said CENVAT credit under SubSection (1) of Section 140 was to be 'prescribed'. The word 'prescribed' has also been defined under Section 2(87) to mean "prescribed by Rules made under this act on the recommendation of the council". This brings us to Rule 117 of CGST Rules, the relevant provision prescribing the manner in which the CENVAT credit has to be transitioned. Initially, the time limit prescribed under Rule 117 for transitioning was 90 days, as explained above, was extended from time to time. Evidently, there is no other provision in the Act prescribing time limit for the transition of the CENVAT credit, and the same has been introduced only by way of Rule 117. This provision also contains a proviso, which vests power with the Commissioner to extend the period on the recommendations of the Council. Indeed, the Commissioner has exercised such power and time period which was initially to expire after 90 days, has been, as a matter of fact, extended till 29th December, 2017. In fact, as noticed above, under Sub-Rule (1A) of Rule 117,....
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....ostponement of availment of ITC. The ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year. It is a different matter that despite the availability of funds in the electronic credit ledger, the registered person opts to discharge OTL by paying cash. That is a matter of option exercised by the registered person on which the tax authorities have no control, whatsoever, nor they have any role to play in that regard. Further, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa. 48. A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred. Any unilateral change in such return as per the present dispensation, would have cascading effect on the recipients and sup....