C/SCA/18738/2018 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 18738 of 2018 POWER PALAZZO PVT LTD Versus UNION OF INDIA THROUGH COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX Appearance: UCHIT N SHETH(7336) for Petitioner(s) No. 1,2 MR CHINTAN DAVE, AGP(1) for Respondent(s) No. 2 MR ANKIT SHAH(6371) for Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 26/02/2020 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: 21A. This Hon'ble Court may be pleased to issue writ of mandamus directing learned respondents to act on representations made by petitioners and grant transitional input tax credit under Section 140 of CGST Act as claimed by petitioners in GST TRAN 1; B. Pending notice, admission and final hearing of this petition, this Hon'ble Court be pleased to direct learned respondents to act on representations made by petitioners and grant transitional input tax credit under Section 140 of CGST Act as claimed by petitioners in GST TRAN 1; C. Ex parte ad interim relief in terms of prayer B may kindly be granted; D. Such further relief(s) as deemed fit in facts and Page 1 of 4 Downloaded on : Fri Jun 18 10:26:43 IST 2021 C/SCA/18738/2018 ORDER circumstances of case may kindly be granted in interest of justice for which act of kindness your petitioners shall forever pray. 2 On 9th October 2019, Coordinate Bench of this Court passed following order: 1. Mr. Uchit Sheth, learned advocate for petitioners, submitted that respondents do not dispute fact that petitioner is entitled to transitional input credit. It was submitted that Form GST TRAN1 was filed by petitioner within stipulated time and even that position is not disputed. It was contended that tax credit is vested right and unless it is established that petitioner has failed to claim it within prescribed time, respondents are not justified in denying claim for transitional input credit. According to learned advocate, such cases are required to be decided in rational manner and Notification dated 10.09.2018 issued by Government of India is required to be read in purposive manner. However, IT Grievance Redressal Committee has considered only those defined errors showing technical glitch, but has not considered other errors. 2. Referring to minutes of 4th meeting of IT Grievance Redressal Committee held on 12th February, 2019, it was pointed out that Committee had categorised errors on account of technical/system issues and cases where there was no evidence of technical/system issues and has allowed filing of Form GST TRAN1 only in those cases where, according to it, there were technical/system issues. 3. Reliance was placed upon decision of Supreme Court in case of Eicher Motors Ltd. v. Union of India, 1999 (106) E.L.T. 3 (SC), for proposition that if on inputs assessee had already paid taxes on basis that when goods are utilised in manufacture of further products as inputs thereto, then tax on these goods gets adjusted which are finished subsequently. Thus, right accrued to assessee on date when it paid tax on raw materials or inputs and that right would continue until facility available thereto gets worked out or until those goods existed. 4. Reliance was also placed upon decision of Supreme Court in case of Collector of Central Excise, Pune v. Dai Ichi Karkaria Ltd., 1999 (112) E.L.T. 353 (SC), for similar proposition. 5. It was submitted that therefore, once it is established that petitioner had tried to file Form GST TRAN1, respondents are not justified in denying petitioner benefit of transitional input credit merely on ground that error was not defined one. 6. In response to submissions made by learned advocate for petitioner, Mr. Ankit Shah, learned senior standing counsel for Page 2 of 4 Downloaded on : Fri Jun 18 10:26:43 IST 2021 C/SCA/18738/2018 ORDER respondent No.1, invited attention of court to Minutes of 4th meeting of IT Grievance Redressal Committee (ITGRC) held on 12.02.2019, to submit that Committee has not rejected case of petitioner, but has observed that in such cases, procedure laid out under circular dated 03.12.2018 of CBIC seemed applicable, and proper prescribed process was required to be followed and that such cases should not have been forwarded to GSTC Secretariat. It was submitted that therefore, it is not as if petitioners claim has been rejected; however, issue is required to be decided by concerned Nodal Officer as per procedure laid down in Circular dated 03.12.2018. 7. Ms. Maithili Mehta, learned Assistant Government Pleader appearing for respondent No.2, submitted that representation made by petitioner is still pending consideration before respondent No.2. 8. In view of above, issue Rule, returnable on 13.11.2019. decision, if any, taken by respondent No.2 on representation made by petitioner shall be placed on record of this court on or before returnable date, if available. To be listed on admission board. 3 Thereafter, this Bench passed following order dated 19th February 2020: 1. Mr.Ankit Shah, learned standing counsel appearing for Union of India and Mr. Chintan Dave, learned Assistant Government Pleader appearing for State jointly make statement that issue will be resolved without fail by next date of hearing. 2. We do not see any good reason why this issue should not be resolved. 3. Post this matter on 26.02.2020 on top of board. 4. We hope that, we are not constrained on next date of hearing to pass harsh order. 4 Today, when mater is taken up for further hearing, statement is made by Mr. Chitan Dave, learned A.G.P. appearing State respondent that Nodal Officer has addressed letter to authority In charge of portal stating that claim of writ applicant to carry forward Cenvat credit is justifiable and for that purpose, portal be opened to enable writ applicant to file his Page 3 of 4 Downloaded on : Fri Jun 18 10:26:43 IST 2021 C/SCA/18738/2018 ORDER TRAN 1. Mr. Chintan Dave places on record letter in writing sent to authority In charge of portal. same shall be kept with record of this case. 5 In view of such statement being made by learned A.G.P., no further adjudication of this writ application on merits is now necessary. Let this exercise be undertaken at earliest and same shall be completed within period of two weeks from date of receipt of writ of this order. This petition stands disposed of accordingly. Direct service is permitted. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) CHANDRESH Page 4 of 4 Downloaded on : Fri Jun 18 10:26:43 IST 2021 Power Palazzo Pvt Ltd v. Union of India Through Commissioner of Central Goods and Services Tax