For TRAN 1 filing after due date , make application before GST Council : HC

Jitendra Maheshwari, Shubhankar Johari and Lalit Parihar for the Petitioner. Anil Bhansali and Rajvendra Saraswat for the Respondent.

ORDER

1. Heard learned counsel for the respective parties.

2. In the present writ application, the petitioner M/s Obelisk Composite Technology LLP through its partner has made a prayer seeking writ of mandamus to the effect that the filing of declaration in form GST Trans-1 may be allowed to enable the petitioner to claim transition credit of eligible duties on the appointed day in terms of section 140 of the Central Goods and Service Tax Act, 2017 and to credit the same in its relevant ledger account or in the alternative to refund the eligible amount to the petitioner.

3. A further prayer has been made to declare Rule 117 of the CGST Rules to claim transitional Credit violates the Constitutional provisions and therefore it may be turned down or ordered to be read down as if there is no last date to file TRAN 1.

4. A further prayer has been made to direct the respondents to revive the facility of filing TRANS-1 on common portal.

5. Learned counsel appearing for the Revenue brought to our notice a judgment rendered by Division Bench of this Court in D.B. Civil Writ Petition No. 7454/2019 (Anupam Motors v. Union of India) wherein challenge to Rule 117 of the Rules were held to be no longer res integra in view of the decision of Gujarat High Court in Willowood Chemicals (P.) Ltd. v. Union of India [2018]  September, 2018 and the challenge to the constitutional validity of Section 140 (3) of CGST Act and the proviso to Rule 117 of the Rules were dismissed.

6. Learned counsel for the State further submits that the Union of India has extended the last date for submitting the GST TRANS-1 upto 31st December, 2019 but the procedure stipulated under sub-rule 1(A) of Rule 117 requires the petitioner to make application through the GST counsel who may make a recommendation to the Commissioner who shall act on the basis of such direction of the counsel.

7. In this respect, our attention was drawn to a judgment passed by this Court in SBCWP No. 4315/2019 (Shree Motors v. Union of India) which was disposed of vide order dated 21.11.2019.

8. Accordingly, upon taking the aforesaid submissions into consideration, we are of the considered view that the challenge to the constitutional validity of Rule 117 no more being res integra, this Court cannot entertain such prayer and accordingly reject the same, however, considering the fact that the Union of India and the Finance Department have extended the period contemplated under Rule 1A of Rule 117 till 31st December, 2019, we grant liberty to the petitioner to make an application before GST Council (through Standing Counsel, who is further requested to hand over the same to the jurisdictional officer) for forwarding the same to the GST Council to issue requisite certificate of recommendation alongwith requisite particulars, evidence and a certified copy of the order instantly and such decision be taken forthwith and if the petitioner’s assertion is found to be correct, the GST Council shall issue necessary recommendation to the Commissioner to enable the petitioner to get the benefit of CENVAT credit within the stipulated time as stipulated by the Union of India i.e. on or before 31st December, 2019.

9. The writ application stands disposed of in terms of the aforesaid directions.

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