9911796707
TMI Blog2020 (3) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ of mandamus or any such appropriate writ order or direction directing the concerned respondents to immediately consider and allow the Transition credit to the petitioner, based on the manual TRAN 1 form, if so required, and transfer the entire Rs. 1,15,35,563/ towards service tax credit, in terms of Section 140(3) of the Central Goods and Services Tax Act, 2017 and allow filing / uploading of Form GSTTRAN-1 now; B) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 3. The petitioner is registered under the provisions of the Central Goods and Services Act, 2017 [for short, 'the Act, 2017']. 4. It is the case of the petitioner that Section 140 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2019 and allied matters decided on 6th September 2019, wherein it is held that the petitioner is entitled to transitional credit of CENVAT as well as service tax as it is the legitimate right of the petitioner to carry forward credit of CENVAT as well as service tax under the Act, 2017: "38 By not allowing the right to carry forward the CENVAT credit for not being able to file the form GST TRAN-1 within the due date may severely dent the writ-applicants working capital and may diminish their ability to continue with the business. Such action violates the mandate of Article 19(1)(g) of the Constitution of India. 39 This High Court, in the case of Indsur Global Ltd. v. Union of India, reported in 2014 (310) E.L.T. 833 (Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted day. It is not the intention of the Government to collect tax twice on the same goods. Hence, in such cases, it has been provided that the credit of the duty/tax paid earlier would be admissible as credit." 42. Article 300A provides that no person shall be deprived of property saved by authority of law. While right to the property is no longer a fundamental right but it is still a constitutional right. CENVAT credit earned under the erstwhile Central Excise Law is the property of the writ-applicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. It could have been appropriated by the government by providing for the same in the CGST Act but it cannot be taken away by virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is genuine or not, he submitted that on verification of such claim, if it is found to be genuine, the petitioner can file / upload GST TRAN-1. Learned standing counsel for the respondents as regards genuineness claim submitted that the same shall be looked into by the respondent No.4. 9. Having considered the submissions made by the respective parties and having through the materials on record, it appears that if the petitioner could not upload the form GST TRAN-1 due to technical glitches and in spite of various representations made by the petitioner, he was not allowed to upload the form GST TRAN-1. 10. In view of the settled legal position as stated hereinabove, the petitioner is entitled to claim credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and whose cases have been recommended by the Council.
Sd/
(Yogendra Garg)
Principal Commissioner (GST)"
13. In view of the above facts, respondent No.4 shall complete the exercise of verification and permit the petitioner to upload the form GST TRAN-1 within a period of two seeks from the date of receipt of the writ of this order so that the petitioner can upload the form GST TRAN-1 on or before 31st March 2020.
14. With the aforesaid directions, petition stands disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted. X X X X Extracts X X X X X X X X Extracts X X X X
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