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TMI Blog2022 (3) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... rst respondent to enable the petitioner to file respondents to either open the portal so as to enable the petitioner to again file TRAN-1 electronically or to accept manually. 2.The case of the petitioner in this writ petition is that the petitioner was a Central Excise Assessee. It is submitted that as on month of June 2017, the petitioner had an accumulated CENVAT credit of Rs. 5,09,612/- under the provisions of Central Credit Rules, 2004. (3,66,215 on input + 50% 2,06,781/- of credit on capital good). It is submitted that the aforesaid credit amount remained un-utilised and therefore the petitioner attempted to transition the credit by filing TRAN-1 electronically in terms of Rule 117 of the Central Goods and Services Tax Rules, 2017 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in (2020) 73 GSTR 267 (P&H) In Aman Motors Vs. UOI and others reported in (2020) 78 GSTR 421 (Del) In Brand Equity Treaties Limited and others etc in SLP.Nos.7425 to 7428 of 2020 In Heritage Lifestyle and Developers and Private Limited Vs. Union of India and others reported in (2021) 86 GSTR 321 (Bom)." 6.A reference was also made to an interim order in SLP.Nos.7425 to 7428 of 2020, wherein the order passed by the Hon'ble Delhi High Court in WPC.Nos.11040 of 2018 and 196, 8496 and 13203 of 2019, dated 05.05.2020 has been stayed on 19.06.2020. 7.Opposing the prayer, the learned counsel for the 3rd respondent would submit that though a learned Single Judge of this Court in W.P.(MD).No. 7712 of 2018 had granted similar relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "9.The credit which was earned by a registered dealer or an assessee under the erstwhile Tamil Nadu Value Added Tax Act, 2006, Central Excise Act, 1944 and Finance Act, 1994 r/w CENVAT Credit Rules, 2004 are indefeasible in nature. The Hon'ble Supreme Court in Collector of Central Excise, Pune and others v Dai Ichi Karkaria Ltd. and others, (1999) 7 SCC 448, has held that credit availed under the provisions of the erstwhile Central Excise Act, 1944 and Central Excise Rules, 1944 are indefeasible and are intended to reduce the cascading effect of the tax to benefit the consumers. The Court held as follows:- "18. It is clear from these rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as retention of such amount by the department would be contrary to Article 265 of the Constitution of India. It would amount to collection of tax without authority of law. Ultimately the purpose of allowing an existing assessee to transition the credit was only a facilitation under the provisions of the respective GST Act and the Rules made thereunder. Therefore, I do not find any merits in the impugned order. 11. Input tax credit and/or capital goods credit which was validly availed under the provisions of the respective enactments which got subsumed into GST enactment cannot be denied. It has to be allowed to be carried forward for being adjusted towards tax liability under the GST regime, if indeed such credit was validly availed lyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of Input Tax Credit which is a beneficial scheme and framed with the larger public interest of bringing down the cascading effect of multiple taxes ought not to be frustrated on the ground of technicalities. In view of the above, we are inclined to affirm the order of the learned Single Judge in directing the petitioner/respondent to enable the respondent herein to file a revised Form TRAN-1, by opening of the portal and that such exercise is to be completed within a period of 8 weeks from the date of issue this order." 14.In these circumstances, I am inclined to allow the writ petition not withstanding the fact that the petitioner has got an alternate remedy before the Appellate Commissioner against the impugned order, as the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein, the amount can be credited directly into the petitioner's GST Electronic Register, if such amounts were indeed available on the cut-off-date as of 30.06.2017 for being transitioned. 13.In view of the above, I remit the case back to the jurisdictional authorities to examine the credit in the respective returns of the petitioner which the petitioner claims to have attempted to transition by uploading TRAN-1 after the enactment of GST Act with effect from 01.07.2017 and come to an independent conclusion on the same. In case, credit on such input and/or capital goods existed and had remained unutilized on 30.06.2017 and could have been transferred if TRAN-1 was filed properly, then the proportionate amount shall be credited into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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