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2019 (7) TMI 678

and the Secondary and Higher Secondary Education Cess - challenge is substantially on the ground that the amendment seeks to retrospectively disallow the transition and carry forward of the EC and SHEC in the GST regime, which was levied on the inputs, capital goods and inputs services used in the manufacture of excisable products, which were cleared on the payment of the Central Excise duty under the CGST Act. HELD THAT:- Let Notice be issued to the learned Attorney General of India. Let Notice be also issued to the respondents herein, returnable on 31st July 2019. Let Notice be also issued as regards interim relief, which has been prayed for, in this petition, returnable on 31st July 2019. Direct service is permitted. Notify this matter on 31st July 2019 on top of the Board. - R/SPECIAL CIVIL APPLICATION NO. 11061 of 2019 - 10-7-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR NARESH THACKER, SENIOR ADVOCATE WITH MR HARDIK P MODH (5344) For The Respondent (s) : None ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 The subject matter of challenge in this writ application is to the constitutional validity of the amendment brought about in Section .....

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f notification No.26/2012- Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semifinished or finished goods held in stock on the appointed day subject to the following conditions, namely:- (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eligible for input tax credit on such inputs under this Act; (iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of such inputs; (iv) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day; and (v) the supplier of services is not eligible for any abatement under this Act: Provided that where a registered person, other than a manufacturer or a supplier of services, is not in possession of an invoice or any other documents evidencing payment of duty in respect of .....

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der this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of inputs; and (v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day. (7) Notwithstanding anything to the contrary contained in this Act, the input tax credit on account of any services received prior to the appointed day by an Input Service Distributor shall be eligible for distribution as credit under this Act even if the invoices relating to such services are received on or after the appointed day. (8) Where a registered person having centralised registration under the existing law has obtained a registration under this Act, such person shall be allowed to take, in his electronic credit ledger, credit of the amount of CENVAT credit carried forward in a return, furnished under the existing law by him, in respect of the period ending with the day immediately preceding the appointed .....

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e under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under subsection (1) of section 3 of the Customs Tariff Act, 1975; (iii) the additional duty leviable under subsection (5) of section 3 of the Customs Tariff Act, 1975; (iv) the additional duty of excise leviable under section 3 of the Additional Duties of Excise Textile and Textile Articles) Act, 1978; (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001; and (viii) the service tax leviable under section 66B of the Finance Act, 1994 (32 of 1994), in respect of inputs and input services received on or after the appointed day. 2 The amended Section 140 of the principal Act reads as follows: In Section 140 of the principal Act, with effect from the 1st day of July, 2017.- (a) in subsection (1) after the letters and word CENVAT credit , the words of eligible duties shall be inserted and shall always be deemed to have been insert .....

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mended) referred to CENVAT credit in accordance with the credit rules, the writ applicants were eligible to transition of such credit into the GST regime. Section 140(1), as it stood prior to its amendment, allowed unhindered operation to avail the CENVAT credit until the amendment came into force on 29th August 2018. Mr. Thacker, the learned senior counsel argued that the impugned amendment seeks to deny and take away the vested and accrued rights and benefit hitherto, which were allowed to be transitioned under Section 140(1) of the CGST Act. 5 The challenge to the constitutional validity of the impugned amendment is substantially on the ground that it is violative of Article 19(1)(g) of the Constitution being absolutely arbitrary and unreasonable. Mr. Thacker submitted that no reasons have been assigned for bringing around such an amendment. 6 Mr. Thacker tried to fortify his submissions by placing reliance on the following two decisions of the Supreme Court: (1) Eicher Motors Limited vs. Union of India [(1999) 2 SCC 361] (2) Tata Motors vs. State of Maharashtra [(2004) 5 SCC 783] 7 Mr. Thacker submitted that the relevant files may be called for and the same may be perused for t .....

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