TMI Blog2020 (3) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have admittedly paid the taxes and are, therefore, entitled for the relief, suffice it to notice that the petitioners had questioned the validity of provisions of Section 140 of the CGST Act and Rule 117 of the CGST Rules in the earlier writ petition, which plea was negated. No case for interference as sought by the petitioners is made out in the present writ petitions - Petition dismissed. - S. B. Civil Writ Petition No. 440/2020, S. B. Civil Writ Petition No. 266/2020 - - - Dated:- 18-3-2020 - HON'BLE MR. JUSTICE ARUN BHANSALI For the Petitioner : Mr. Sharad Kothari Mr. Prateek Gattani For the Respondent : Mr. Rajvendra Saraswat JUDGMENT These writ petitions have been filed by the petitioners aggrieved by non filing of Form GST Tran-1 at common portal allegedly because of various system error/technical glitches at the portal throughout the period during which the Form was available, which resulted in denial of transactional credit of central excise paid on goods amounting to ₹ 23,27,063/- in S.B.C.W.P. No. 440/2020 and ₹ 85,41,755/- in S.B.C.W.P. No. 266/2020 as on the appointed date i.e. 01.07.2017 in terms of Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the representation in a time bound manner with a speaking order. In S.B.C.W.P. No. 266/2020 also, a similar direction was issued on 21.11.2019. Pursuant to the directions dated 21.11.2019 the petitioners filed their representation to the GST Council with a prayer to allow online filing of Form GST Tran-1, however, the representation filed by the petitioner in S.B.C.W.P. No. 440/2010 was decided by the GST Council (Annexure-15) with the observations that the case was put up at the ITGRC meeting held on 02.12.2019 and it was observed that petitioner s case falls under the category B-1 i.e. cases where the tax payer received the error As per GST system log, there are no evidence of error or submissions/filing of TRAN- 1 . The petitioner was further directed that the credit of GST TRAN-1 taken by the petitioner on the basis of interim order be reversed with applicable interest. Similarly in S.B.C.W.P. No. 266/2020 identical communication (Annexure-10) was sent and alongwith letters copies of the communication received from the Joint Secretary, GST Council were annexed. It is, inter alia, submitted by counsel for the petitioners that the action of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the writ petitions be allowed and the communications issued requiring the petitioners to reverse the credit be quashed and set aside. Learned counsel appearing for the respondents made submissions that the writ petitions filed by the petitioners have no substance. Submissions were made that procedure have been provided in law for taking the benefit of available credit by way of provisions of Section 140 of the CGST Act and Rule 117 of the CGST Rules. However, a limitation in this regard has been provided and the petitioners were, therefore, required to follow the limitation in claiming the credit. However, within the limitation prescribed the needful was not done and, therefore, the petitioners are not entitled to any relief. Further submissions were made that once the respondents after going through the log came to the conclusion that there was no evidence of error or submission/filing of Form GST Tran-1 by the petitioners, the petitioners on account of alleged vested right cannot seek the relaxation in the limitation and reopening of the portal for the purpose. Further submissions were made that the allegations made about the technical glitches and that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any). 3. For the purpose aforesaid, the petitioner may submit an application before the GST Council to issue the requisite certificate/recommendation, alongwith requisite particulars, evidence and a certified copy of the order instant, within a period of 15 days from today. If the petitioner s assertion is found correct, the GST Council shall issue the recommendation/certificate to the petitioner within a period of three weeks from placement of such application and certified copy of this order. 4. In case the GST Council is of the view that petitioner is not entitled for certificate/recommendation, they shall pass an order giving brief reasons and communicate the same to the petitioner assessee. Needless to observe that the petitioner shall be free to take appropriate remedy against such order. A perusal of the above directions would reveal that the Court permitted the petitioners to submit online Form GST Tran-1 subject to furnishing a proof that they had tried to upload Form GST Tran-1 prior to 27.12.2017 and such attempt failed due to technical glitches on the common portal. Further the petitioners were required to submit a certificate/recommendation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Gaurav Industries B-1 Category, 3rd ITGRC meeting held on 26.10.2018 7. 4315/2019 M/s Shree Motors B-1 Category, 9th ITGRC meeting held on 02.12.2019 3. In view of above position it is clear that 9 cases (Sr. No.1, 4, 5, 6, 7, 9, 10, 13, 14) were placed through GSTN as per CBIC Circular dated 03.04.2018 before ITGRC and remaining 5 cases (Sr. No. 2, 3, 8, 11, 12) are not placed before the ITGRC till 9th ITGRC. 4. Out of above 9 cases presented by GSTN only one case (Sr. No. 14) was categorised under category A by GSTN which means error was faced by taxpayer while filing TRAN-1 on GST Portal. Other 8 cases were placed in category B by GSTN on the basis of systems log as no error was faced by the taxpayer while filing TRAN-1. Therefore, ITGRC has recommended only one case (Sr. No. 14) to reopen the portal and in remaining 08 cases not allowed to re-open the GST Portal. In case any new facts has emerged in view of Para 2 above, in these cases, the same may be brought to the notice of this office. 5. Further, your attention is drawn towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein, while considering the proviso II to Rule 57G of the Act of 1944 it was laid down that by providing limitation the statute has not taken away any of the vested rights, which accrue to the manufacturers and what is restricted is the time, within which, the manufacturer has to enforce that right and, therefore, once the provisions of Rule 117 of the CGST Rules, which prescribe limitation has been upheld, the plea raised pertaining to the denial of vested right on account of petitioners failing to submit/file Form GST Tran-1 in time cannot be countenanced. In the judgments of various High Courts cited by learned counsel for the petitioners, in none of the cases the petitioners therein were given specific directions to place material with regard to the technical glitches and attempt on their part to file/submit the Form by the High Court in petitions filed by them and finding of fact had been recorded pertaining to failure on part of the petitioners therein to file/submit Form GST Tran-1 by the GST Council. In view thereof, the directions given in the judgments relied on by leaned counsel for the petitioners cannot come to the rescue of the petitioners now, once under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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