TMI Blog2020 (2) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances, this Court has gone into the question that in such circumstances what would be the remedy if a person who tries to follow Rule 117 of the CGST Rules, 2017 but, without there being any fault on his side he could not upload the form due to technical glitches. This Court has followed the judgement in the case of FILCO TRADE CENTRE PVT. LTD. VERSUS UNION OF INDIA [ 2018 (9) TMI 885 - GUJARAT HIGH COURT] , wherein, after relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid tax on the raw materials or the inputs and that right would continue by way of CENVAT credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Applications Nos. 5758, 5759, 5760 and 5762 of 2019 allowing all the four writ applications on the ground that the same is per incuriam. 2. Since the issues raised in all the captioned Miscellaneous Applications are same, those were heard analogously and are being decided by this common judgement and order. 3. By way of present applications, the applicants original respondents have prayed for review of the judgement and order dated 06.09.2019 passed by this Court on the ground that due to inadvertence, they could not point out the judgement of this Court rendered in the case of Willowood Chemicals Pvt. Ltd. vs. Union of India in the Special Civil Application No.4252 of 2018 reported in 2018 (19) GSTL 228 (Guj) and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not noticed the earlier binding precedent of the co-ordinate Bench and having not considered the mandatory provisions of the Act, the decision should be rendered per incuriam and it, therefore, does not constitute a binding precedent. The same view is also taken by the Kolkata High Court in the case of Hindustan Cables Ltd. and Ors. vs. Tapan Kumar Sarkar and Ors. reported in (2016) 4 CALLT 220 (HC) and several other High Courts namely, (1) the Bombay High Court in the case of Kuresh Taherbhai Rajkotwala vs. Union of India reported in 2007 (209) E.L.T. 347 (Bom.), (2) the Kerala High Court in the case of Collector of Customs, Cochin vs. State of Kerala reported in 1993 (66) E.L.T. 351 (Ker) and (3) the Orissa High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods or administrative convenience prevailed even under the Central Excise Act and the Cenvat Credit Rules when no such restriction was imposed on enjoyment of Cenvat credit in relation to goods purchased prior to one year. 4.3 It is vehemently submitted by Mr. Shraff, the learned counsel for the respondents herein that the principle underlying in Filco Trade Centre Pvt. Ltd. (supra) would be a binding precedent in a case which comes up for decision subsequently. A decision takes its colour from the question involved in the case in which it is rendered. To substantiate his submission, the learned counsel has placed reliance on the judgement of the Supreme Court in the case of The Divisional Controller, KSRTC vs. Mahadev Shetty an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel for the respondents herein. The applicants have relied on the case of Willowood Chemicals Pvt. Ltd. (supra). In that case, the vires of Section 164 of the CGST Act, 2017 was challenged and it was prayed that the respondents be directed to allow the petitioners to carry forward CENVAT credit in the electronic credit ledger, available as on 30th June, 2017 in terms of Section 140(3) of the Central Goods and Services Act, 2017, wherein the co-ordinate Bench had observed that the time limit provision contained in Rule 117 of the CGST Rules, 2017 is annihilated and cannot be seen as merely technical in nature and the petition was dismissed. While in the case of Jay Chemicals Industries Ltd. (supra), the coordinate Bench had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid tax on the raw materials or the inputs and that right would continue by way of CENVAT credit. The CENVAT credit is therefore indefeasible. Following the said principle, this Court had directed the applicants herein original respondents to permit the respondents herein original petitioners to allow filing declaration form in GST TRAN-1 and GST TRAN-2, so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the GST Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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