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2020 (1) TMI 1322 - HC - GSTReversal of credit - Section 140 of CGST Act read with Rule 117 of CGST Rules - Cesses such as Education Cess, Secondary and Higher Education Cess and Krishi Kalyan Cess covered or not - HELD THAT - Heard for interim relief also. In the facts and circumstances of the case, we consider it appropriate to stay the operation of the order of the learned Single Judge, as it is likely to be applied in other such similar cases. Post the matter after six weeks.
Issues:
1. Claim of Input Tax Credit (ITC) against GST liability for Education Cess and Secondary and Higher Education Cess paid before GST law came into effect. 2. Interpretation of provisions of Section 140 of CGST Act and Rule 117 of CGST Rules regarding Cesses such as Education Cess, Secondary and Higher Education Cess and Krishi Kalyan Cess. 3. Comparison of judgments of different High Courts regarding the allowance of credit for such Cesses. Issue 1: Claim of Input Tax Credit (ITC) against GST liability for Education Cess and Secondary and Higher Education Cess paid before GST law came into effect The appellant Revenue argued that after the deletion of Education Cess (EC) and Secondary and Higher Education Cess (SHEC) by Finance Acts, the Assessee could not claim any ITC against the GST liability for such Cess paid, which came into effect from 01.07.2017. The learned Single Judge allowed the writ petition filed by the Assessee against the communication asking to reverse the amount paid. The Revenue, aggrieved by this decision, filed the present Writ Appeal. Issue 2: Interpretation of provisions of Section 140 of CGST Act and Rule 117 of CGST Rules regarding Cesses The Assessee filed a writ petition against the communication asking to reverse the amount paid, stating that Section 140 of CGST Act read with Rule 117 of CGST Rules does not cover Cesses such as Education Cess, Secondary and Higher Education Cess, and Krishi Kalyan Cess. The High Court considered the arguments presented by both parties and decided to stay the operation of the Single Judge's order, as it may have implications in similar cases. Issue 3: Comparison of judgments of different High Courts regarding the allowance of credit for such Cesses The Revenue cited the judgment of the Delhi High Court in the case of "Cellular Operators Association of India -Vs- Union of India" where it was held that credit for such Cess could not be allowed to the Assessee. However, the Assessee referred to the case of "Eicher Motors Limited -Vs- Union of India" where the Supreme Court allowed credit under similar circumstances, emphasizing the absence of specific lapsing provisions enacted by the State. The High Court noted the absence of any contrary view from other High Courts on this matter. This judgment addresses the conflicting interpretations regarding the eligibility of Input Tax Credit for Education Cess and Secondary and Higher Education Cess paid before the GST law came into effect. It delves into the provisions of the CGST Act and Rules, examining the applicability of such Cesses under Section 140 and Rule 117. The High Court's decision to stay the Single Judge's order reflects the complexity of the issue and the need for further deliberation. The comparison of judgments from different High Courts adds a layer of legal analysis to the case, highlighting the divergent views on the allowance of credit for these Cesses.
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