Rishi Graphics Pvt. Ltd. v. Union of India & Ors
[Citation -2020-LL-0304-130]

Citation 2020-LL-0304-130
Appellant Name Rishi Graphics Pvt. Ltd.
Respondent Name Union of India & Ors
Court HIGH COURT OF CALCUTTA
Relevant Act CGST
Date of Order 04/03/2020
Judgment View Judgment
Keyword Tags cenvat credit


1 S/L 8-30, 212, 110, 132, 163 & 164 04.3.2020 Ct. No. 23 SD W.P. 17234 (W) of 2019 M/s. Rishi Graphics Pvt. Ltd. Vs. Union of India & Ors. With W.P. 17236 (W) of 2019 M/s. Print Sales Company Vs. Union of India & Ors. With W.P. 19960 (W) of 2019 M/s. Steel Authority of India Ltd. Vs. Union of India & Ors. With W.P. 20040 (W) of 2019 M/s. Das Auto Centre Vs. Union of India & Ors. With W.P. 8573 (W) of 2019 Joydev Ghosh Vs. Union of India & Ors. With W.P. 8583 (W) of 2019 Sumita Ghosh Vs. Union of India & Ors. With W.P. 20041 (W) of 2019 Sanjay Kr. Karu Vs. Union of India & Ors. With W.P. 12312 (W) of 2019 INDO East Corporation Pvt. Ltd. Vs. Goods & Service Tax Council & Ors. With W.P. 7077 (W) of 2019 2 M/s. Rudra Autoparts Distributor Vs. Union of India & Ors. With W.P. 18088 (W) of 2018 M/s. Vertiv Energy Pvt. Ltd. Vs. Union of India & Ors. With W.P. 21837 (W) of 2019 Amit Tibrewal Projector of M/s. PLY King Vs. Union of India & Ors. With W.P. 21101 (W) of 2019 Sonali Polyplast Pvt. Ltd. Vs. Superintendent of Central Tax, Range-I, Singur Division & Ors. With W.P. 8822 (W) of 2019 Sanjay Kumar Agarwala Vs. Goods & Services Tax Network & Ors. With W.P. 22324 (W) of 2019 Amitava Biswas, Propritors of M/s. N.N. Enterprises Vs. Union of India & Ors. With W.P. 22326 (W) of 2019 M/s. Ray Indra Chandra & Anr. Vs. Union of India & Ors. With W.P. 23312 (W) of 2019 Excel Composites Pvt. Ltd. Vs. Nodal Officer, IT Glitch CGST & CX, Kol. North Commissionerate, Range IV & Ors. With W.P. 11761 (W) of 2019 M/s. Chandras Chemical Enterprises Pvt. Ltd. & Anr. Vs. Union of India & Ors. With W.P. 12747 (W) of 2019 3 Heera Metals Pvt. Ltd. Vs. GST Council & Ors. With W.P. 21808 (W) of 2019 One Auto P. Ltd Vs. GST Network & Ors. With W.P. 24020 (W) of 2019 Baljit Iron Pvt. Ltd. Vs. Asst. Commissioner of Central Goods & Service Tax Bally-I, Div. & Ors. With W.P. 23472 (W) of 2019 M/s. Rene Impex Pvt. Ltd. Vs. Union of India & Ors. With W.P. 23475 (W) of 2019 M/s. Krishna Hi-Tech Infrastructure Pvt. Ltd. & Anr. Vs. Union of India & Ors. With W.P. 10189 (W) of 2019 M/s. Hazemag India Pvt. Ltd. & Anr. Vs. Union of India & Ors. With W.P. 11307 (W) of 2019 OSL Prestige P. Ltd. Vs. Goods & Services Tax Network & Ors. With W.P. 1277 (W) of 2020 Soni Hydrantics Pvt. Ltd. Vs. Goods & Service Tax Network & Ors. With W.P. 2640 (W) of 2020 Shashank Banka Vs. GST Council & Ors. With W.P. 3921 (W) of 2020 Idea Weavers Pvt. Ltd. 4 Vs. GST Council & Ors. With W.P. 3922 (W) of 2020 Rajesh Agarwal Vs. GST Council & Ors. Mr. Arijit Chakrabarti Mr. Nilotpal Chowdhury Mr. Prabir Bera Mr. Rahul Tangri Ms. Udita Saraf Mr. Vinay Kumar Shraff Mr. P. Sharma Mr. Sandip Choraria Mr. Shovan Ghosh Mr. P.K. Das Mr. Indranil Banerjee Mr. Ghanashyam Patra Mr. Vinay Kumar Shraff Mr. Indranil Banerjee Mr. A. Boral Mr. D. Basu Thakur Mr. Bhaskar Bhattacharyya Ms. Sweta Mukherjee Mr. Anil Kumar Dugar Mr. Rajarshi Chatterjee Mr. Akshat Agarwal Mr. R.K. Chowdhary Mr. T.K. Mitra Mr. P. Chatterjee For Petitioners Mr. Abhratosh Majumdar, Ld. A.A.G. Mr. S. Mukherjee Mr. T.M. Siddiqui Mr. P. Dudhoria Mr. Avra Mazumder Mr. D. Ghosh For State Respondents Mr. Tapan Bhanja Mr. Sujit Mitra Mr. Sovan Mukherjee Mr. Uday Sankar Bhattacharjee Mr. B.P. Banerjee For Union of India Mr. K.K. Maiti Mr. Somnath Ganguli Ms. Sanjukta Gupta Mr. Amitabrata Roy Mr. B.P. Banerjee Ms. Sabnam Basu Ms. Aishwarya Rajyashree For Respondents 1. In these writ petitions, issue involved is similar in nature and accordingly, same are being taken up together. 5 2. petitioners have approached this court with prayer for allowing them to file/upload in GST TRAN-1. petitioners intend to file TRAN-1 Form and/or revised TRAN-1 Form. 3. Though time-limit for uploading of TRAN-1 is extended till March 31, 2020, sub-rule 1A of Rule 117 extends this benefit only to those registered persons who could not upload form in time on account of technical difficulties on common portal and in respect of whom, GST Council forwards recommendation for extension. In present case, request of petitioners has not been accepted by respondent authorities and, therefore, benefit of extension till March 31, 2020 is not available to these petitioners. 4. According to me, request of petitioners before authorities along with averments made in writ petitions to effect that they faced technical glitches are sufficient. I am of view that assessees transitioning into new procedure set out under GST regime are bound to face complications and in some cases may be completely unable to carry out new procedure. 5. issue involved in these writ petitions has been considered by Gujarat High Court in Siddharth Enterprises vs. Nodal Officer reported in 2019 (29) G.S.T.L. 664 (Guj.) wherein question was whether claim for transition of credit is only procedural requirement or mandatory one. 6. After exhaustive discussion of matter, Gujarat High Court held as follows:- 42. Article 300A provides that no person shall be deprived of property saved by authority of law. While right to property is no longer fundamental right but it is still constitutional right. Cenvat credit earned under erstwhile Central Excise Law is property of writ-applicants and it cannot be appropriated for merely failing to file declaration in absence of Law in this respect. It could have been appropriated by government by providing for same in CGST Act but it cannot be taken away by virtue of merely framing Rules in this regard. 7. Gujarat High Court directed petitioner to file declaration in Form TRAN- 1 so that they could file transitional credit of eligible duties as prayed for. same view has been taken by Madras High Court, Delhi High Court and High Court of Punjab & Haryana at Chandigarh in cases of Schwing Stetter India Private Limited vs. Commissioner of GST and Central Excise, Chennai & Others reported in (2019) 68 GSTR 46 (Mad), Kusum Enterprises Pvt. Ltd. & Anr. vs. 6 Union of India & Others reported in (2019) 68 GSTR 338 (Delhi), Blue Bird Pure Pvt. Ltd. vs. Union of India & Others reported in (2019) 68 GSTR 340 (Delhi) and Adfert Technologies Pvt. Ltd. vs. Union of India reported in 2020 (32) G.S.T.L. 726 (P&H) respectively. 8. It has also been brought to my notice that judgment in case of Adfert Technologies Pvt. Ltd. (supra) was taken up in appeal before Supreme Court by way of Special Leave Petition wherein Supreme Court has been pleased to dismiss Special Leave Petition. 9. Mr. Abhratosh Majumdar, learned Additional Government Pleader appearing on behalf of State, submits that in certain cases relating to same issue, Supreme Court has issued notice in Special Leave Petitions. 10. One may further refer to very recent unreported judgment passed by Madras High Court by Anita Sumanth, J. dated January 21, 2020 in M/s. Samrajyaa and Company vs. Deputy Commissioner of GST & Central Excise (in WP No.35714 of 2019) wherein Hon ble Judge has considered entire matter and thereafter come to following conclusion:- 5. All in all, what appears clear to me is this: (i) era of GST is in nascent stage and both Department as well as assessees are still learning ropes (ii) rigid view should thus not be taken in matters involving procedural requirements such as availment of credit; (iii) it is common knowledge that assessees pan India are facing difficulties in accessing system and uploading Forms to seek transition of credit, and (iv) three Division Benches have taken view that time lines set out for transition of credit cannot be very firmly enforced in so far as they are not mandatory. 6. Taking into account aforesaid, I am of view that petitioner in this case, without it being precedent in other cases, should be permitted to upload Tran-1 declaration and avail of transition of credit. 7. This is also for reason that availment of credit by assessee in distinct from utilization of same, latter being matter of assessment. 8. This writ petition is disposed directing respondent to permit petitioner to access portal for uploading of Tran-I, forthwith. No costs. Consequently, connected miscellaneous petition is closed. 11. I find no reason to take different view from that of judgments cited above. In my view, procedural law should not take away vested rights of persons that are provided to them by statute. 12. Needless to mention, this vested right is subject to scrutiny by Department. Therefore, petitioners should be allowed to upload TRAN-1/revised TRAN-1 so 7 that their claim of transfer of available credit may be considered by authorities in accordance with law. 13. In view of above reasons discussed hereinabove, I direct GSTN authorities (Authority that manages portal) to open portal for petitioners till March 31, 2020. This order shall not create any equity in favour of any of petitioners in so far as their claim is concerned and same shall be subject to scrutiny by concerned authority. 14. With above observations, all writ petitions are disposed of. 15. There will be no order as to costs. 16. Urgent photostat certified copy of this order, if applied for, be given to parties upon compliance of all necessary formalities. (Shekhar B. Saraf, J.) Rishi Graphics Pvt. Ltd. v. Union of India & Or
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