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TMI Blog2022 (5) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 2,18,75,232/- for which undue credit, according to the Revenue, was obtained by the respondent assessee. 2. The matter pertains to the period of transition in 2017 to the goods and services tax regime. The substance of the dispute relates to the payment by the assessee of the service tax component pertaining to manpower and the like services received by the assessee partly for the quarter ending March 31, 2017 and partly for the quarter ending June 30, 2017 long after the appointed date of July 1, 2017 and claiming cenvat credit therefor. 3. For possible financial constraints on the part of the assessee - and it is unnecessary to go into the reason for the delay - the service tax payment on account of the relevant manpower and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue has only questioned the propriety of the assessee being allowed credit for the aforesaid sum of about Rs. 2.18 crores and Article 226 of the Constitution has been invoked in the absence of the Tribunal being constituted under the Act of 2017. To repeat, the challenge to the appellate order of January 8, 2021 which is assailed in the present proceedings is confined to the assessee availing cenvat credit to the extent of the aforesaid amount of Rs. 2,18,75,232/- and the appellate order permitting the same. 6. The Revenue first refers to Section 140 of the Act of 2017. Sub-section (1) from the relevant provision has been placed: "140. Transitional arrangements for input tax credit. - (1) A registered person, other than a person opting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax corresponding thereto ought to have been received by the Revenue prior to the appointed date of July 1, 2017. The second ground that impressed the Joint Commissioner and is reflected in the order-in-original is that double benefit had been obtained by the assessee; first, in terms of the locational exemption applicable and, later, the cenvat credit. 9. It is necessary to deal with the second ground first, since such ground was also before the appellate authority and the appellate authority found no merit therein, particularly since, on a plain reading of the applicable provision, the assessee was entitled to obtain due credit for the aforesaid sum of Rs. 2,18,75,232/-. There is no doubt that to the extent the assessee availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axes" though amended Section 140(1) of the Act confines the matter only to "eligible duties". Quite plainly, the amendment to Section 140(1) of the Act of 2017 to incorporate the words "of eligible duties" was wholly unnecessary as the preceding expression "cenvat credit" was already self-contained and the incorporation of the amendment sans a reference to the tax component made it somewhat anomalous which Rule 117 of the Rules of 2017 rectifies. However, a rule cannot, ordinarily, rectify or alter any statutory provision. Be that as it may. 12. The key to the issue, as had to be discerned with a great deal of difficulty from the equally convoluted appellate order, is in the existing law or practice under the previous regime continuing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a declaration electronically in the specified form GST TRAN-1 within 90 days of the appointed date. Since, a proviso to such Rule permits the Commissioner to extend the period by a further 90 days, by general notifications, which are not disputed, the period was extended till December 27, 2017. Thus, it is evident that the relevant GST TRAN-1 form was filed by the assessee within the time permitted. 15. Rule 3 of the Cenvat Credit Rules, 2004 indicates, inter alia, the various forms of service tax for which cenvat credit may be obtained. There is no dispute that the assessee in this case was qualified to obtain cenvat credit as the service tax on manpower and like services was levied originally under Section 66 of the Finance Act, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed by the existing law, within the meaning of Section 2(48) of the Act of 2017 and which was saved by Section 174 thereof. 17. Since it is evident that the service tax return relating to the quarter ended June 30, 2017, immediately preceding the appointed date, was filed in accordance with the existing law and there is no dispute that it has been filed in the prescribed form since the Revenue has acted thereon, it is now necessary to see the impact of such service return filed in October, 2017 qua the entitlement of the assessee to obtain cenvat credit for the service tax component. 18. For such purpose, it is Section 140(1) of the Act of 2017 which is the only guiding light. As noticed earlier, the relevant provision pertains to the cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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