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TMI BlogWrit petitions filed in various High Court(s) related to transitional provisions in GSTX X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit in the matter. In all these cases, the petitioners, time and again, challenge the transitional provisions of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as CGST Act, 2017) and rules made thereunder. 2. The issues raised in most of such writ petitions/PILs/Appeals are similar in nature. However, inputs/ comments on the policy issues/questions of law have to be provided to the field formations by the Policy Wing separately in each such reference from the filed formations. This not only requires duplication of efforts of the Policy Wing, but also may result in undue delay in filing appropriate reply/counter affidavit in the Courts by the field formations. 3. For ease of reference and in order to ensure that no such separate references are required to be made by the field formations to Policy Wing of CBIC seeking inputs/ comments on policy matters in the writ petitions / PILs / appeals filed on issues pertaining to transitional credit, including issues related to non-filing of TRAN-1/ TRAN-2 by due date and other related issues, a list of pol icy issues / questions of law, that are often challenged in the said writ petitions, has been compiled along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the petitioner that CENVAT Credit / Input Tax Credit are absolute / vested rights is fundamentally flawed, legally erroneous and ex-facie contrary to the law laid down by the Hon'ble Supreme Court in at least three (03) judgments which are detailed as below,- (i) In the case of Osram Surya Pvt. Ltd. vs. Commissioner of Central Excise, Indore, (2002) 9 SCC 20 the Hon'ble Supreme Court has held that a rule fixing a time limit for exercise of a right does not take amount to taking away any vested right. The Hon'ble Supreme Court held that: - "… in the instant case by the introduction of the second proviso to Rule 57G, the credit in the account of a manufacturer was not taken away but only the manner and the time within which the said credit was to be taken or utilized alone was stipulated. It is to be noted at this juncture that the substantive right has not been taken away by the introduction of the proviso to the Rule in question but a procedural restriction was introduced which, in our opinion, is permissible in law." (ii) Similarly, Hon'ble Supreme Court in the case of ALD Automotive (P) Ltd. v. CTO, (2019) 13 SCC 225: 2018 SCC OnLine SC 1945 at page 242, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plenary provision itself has been made subject to "such manner as maybe prescribed". Therefore, when Rule 117 lays down the time and manner in which such right can be exercised, it can neither be said that the Act did not envisage the time and manner in which CENVAT credit can be availed and nor can it be said that such Rule in any manner was in exercise of excessive delegation. As discussed above, the Hon'ble Supreme Court has held that the manner in which a right can be exercised cannot mean that such a right is taken away. It is well-settled that when a statute provides for a manner to do something, it can be done only in that manner or not done at all. Therefore, when Rule 117 of CGST Rules is the law prescribing the manner in which transitional credit can be availed of, then it can be so availed only in such manner prescribed and the provision and its rigours cannot be circumvented by referring to such a provision as directory. [Mackinnon Mackenzie & Co. Ltd. v. Mackinnon Employees Union (2015) 4 SCC 544; Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422; Taylor v. Taylor [(1875) LR 1 Ch D 426] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1935- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous andhas extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State."" The finding of this Hon'ble Court in the case of ALD Automotive (supra), reproduced hereinabove has been distinguished in the impugned judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed there under must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail" (iv) The Hon'ble High Court of Rajasthan in the case of Shree Motors vs. Union of India (2020) SCCOnline Raj 381, while considering the case of persons who claimed that they were unable to submit the TRAN- 1 Form within the prescribed time-limit on account of technical glitches, but were unable to tender any evidence to substantiate the said claim, held: "33. The theory of vested rights and the implication of limitation on the said aspect of vested right has been considered by Hon'ble Supreme Court in the case of Osram Surya (P) Ltd. (supra), wherein, while considering the proviso II to Rule 57G of the Act of 1944 it was laid down that by providing limitation the statute has not taken away any of the vested rights, which accrue to the manufacturers and what is restricted is the time, within which, the manufacturer has to enforce that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the aforesaid statutory provisions. The power conferred under Article 226/227 of the Constitution of India is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. (G) From above, it is clear that a taxpayer cannot claim input credit of the duty or tax paid as a vested right under GST and input credit is in the form of a concession / benefit and reasonable restrictions on availing such credit can be imposed. Thus, a taxpayer cannot claim credit accumulated under the erstwhile taxation regime (Central Excise and Service Tax) as a vested right for transition under GST. Provisions have been made under section 140 of the CGST for transition of credit for different class of tax payers and restrictions, if any, placed on a particular class of taxpayers are reasonable in nature and by no stretch of imagination be termed as perverse, arbitrary and unreasonable. II. RULE 117/120A OF CGST RULES 2017 ARE WITHIN THE RULE-MAKING POWER OF THE CENTRAL GOVERNMENT UNDER THE CGST ACT,2017 (H) Section 140 of the CGST Act, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Eicher Motors Pvt. Ltd. vs. Union of India 1999 (106) ELT 3. In its Judgment, this Court had inter-alia held sub-rule (4A) of Rule 57F of the Central Excise Rules, 1944 to be beyond the Rule-making powers of the Central Government. Subsequently, in order to overcome the aforesaid decision of this Hon'ble Court in Eicher Motors (supra), the impugned sections were enacted adding sub-clause (xxviii) to Sub-section (2) of Section 37 of the Central Excise Act, 1944 empowering the Central Government to prescribe Rules to provide for the lapsing of credit of duty lying unutilized. Further, an express provision validating sub-rule (4A) of Rule 56F was enacted. The Hon'ble High Court in SML Isuzu (supra) was considering the validity of these amendments that were brought about to overcome the effect of the Judgment in Eicher Motors (supra). Upholding these provisions, it was held by the Hon'ble High Court in SML Isuzu (supra)that: "24. As indicated above, the only ground on which the Supreme Court held that Rule 57F(4A) could not be applied to MODVAT credit already accumulated with the manufacturers was that the same would affect the rights of parties which had crystallized and the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the foundation on which the decision was based, has been fundamentally altered by the said provision. The Parliament, inter alia; validated clause (e) of sub-rule (17) of rule 57 of the said Rules with retrospective effect. 33. It is no doubt true that in Eicher Motors Ltd. (supra) the Apex Court ruled that the modvat credit standing to the credit of the assessee on 31 st September, 1997 was a vested right; which was accrued in favour of the petitioner or, at any rate, it was an existing right. It is a settled principle of interpretation of statues that a vested right or even an existing right, including a right of action is not affected or allowed to be taken away unless it is so affected or taken away by the enactment expressly or by necessary implication. It is no doubt true that a declaratory or a procedural enactment which is, normally, held to be retrospective. A remedial Act, on the contrary, is not necessarily retrospective, it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment. [see AIR 1960 SC 12 (para 29) - The Central Bank of India v. Their Workman and also AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribing the deadline under Rule 117 to Section 164 of the CGST Act, 2017, in the case of M/s Nelco Ltd. (supra), wherein the Hon'ble High Court held: "47. Thus, the time limit in Rule 117(1) is traceable to the rule-making power conferred in Section 164(2). The credit envisaged under Section 140(1) being a concession, it can be regulated by placing a time limit. Therefore, the time limit under Rule 117(1) is not ultra-vires of the Act." The Hon'ble High Court of Gujarat has also so traced the rule making power for prescribing the deadline under Rule 117 to Section 164 of the CGST Act, 2017 in the case of Willowood Chemicals Pvt. Ltd. vs. Union of India &Ors., SCA No. 4252 of 2018, wherein the Hon'ble High Court held: "26. Section 140 of the CGST Act, which is a transitional provision, essentially preserves all taxes paid or suffered by a dealer. Credit thereof is to be given in electronic credit register under the new statute, only subject to making necessary declarations in prescribed format within the prescribed time. As noted, sub- section [1] of Section 164 of the CGST Act authorizes the Government to make rules for carrying out the provisions of the Act on recommendat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), vide State of Bihar v. Ramjee Prasad [(1990) 3 SCC 368 : 1991 SCC (L&S) 51] , Union of India v. Sudhir Kumar Jaiswal [(1994) 4 SCC 212 :1994 SCC (L&S) 925:(1994) 27 ATC 561] (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn.[(2004) 2 SCC 76: 2004 SCC (L&S) 337] (videSCCpara31),University Grants Commission v. Sadhana Chaudhary [(1996) 10 SCC 536 : 1996 SCC (L&S) 1431] , etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result." (N). Without prejudice to the above it is submitted that the time-limit prescribed under Rule 117 is rational and reasonable. It is submitted that limitations of time in filing any form or return are needed for effective administration of the tax regime and so that the administrative machinery functions properly. Insofar as the reasonableness of the provision is concerned, it is submitted that Rule 117 of the CGST Rules, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier." (P). The deadline prescribed under Rule 117 has been upheld by the Hon'ble High Court of Bombay in the case of Nelco (supra). The Hon'ble High Courtheld: "53. We do not find that the time limit in the impugned rule is arbitrary or unreasonable. To plan to allocate resources, it is necessary to know the amount of taxes available by a particular time. For an efficient administration of a tax system, certainty, especially in terms of time, is important. Calculations of the tax liability dictated by subjective conditions can lead to uncertainty. Such uncertainty makes it difficult to budget and ensure that funds are allocated where they are most required. The time limit for availing of input tax credit in the transitionary provisions is thus rooted in the larger public interest of having certainty in allocation and planning. The time limit under Rule 117 is thus not irrelevant." (Q). It is too well settled that there is no equity in fiscal statutes and therefore the view in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA 372: (1936) 44 LW 583 : AIR 1936 PC 253 (2)] , IA pp. 381-82) '… where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.'" (S) The Hon'ble High Court of Chhattisgarh in the case of M/s Jagadamba Hardware Stores vs. Union of India &Ors., WP(T) No. 31 of 2020, treated the time-limit under Rule 117 to be mandatory and refused to grant relief to the Petitioner therein and direct the authorities to permit the belated submission of the TRAN- 1 Form by the Petitioner. It was held by the Hon'ble High Court: "10. If we go through Annexure P/3, it clearly reflects that the Govt. of India was very clear on the issue that the last date of filling up of TRAN-1 extended up till 31.04.2018 (sic) shall not be applicable in general, but would be entitled for only those genuine tax payers who had in the past attempted to fill TRAN-1 but were unsuccessful. The circular also very clearly had laid down that the circular dated 03.04.2018 would be implemented in line with the procedure prescribed under circular dated 03.04.2018 and also on fulfilling the conditions prescribed therein. *** 12. Another aspect which requires to be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Tax Rules, 2017. The period of extension has been statutorily circumscribed at 90 days and that too is possible only on the recommendation of the Council." IV. SUB-RULE (1A) OF RULE 117 OF CGST RULES, 2017 CANNOT BE TERMED AS ARBITRARY OR VAGUE AND IS WELL WITHIN THE FOUR CORNERS OF THE STATUE (U). It is contended that the root cause for various taxpayers not being able to file FORM TRAN-1 is the failure of the network to work seamlessly is erroneous for the reason that 9.41 Lakh number of TRAN- 1 Returns have been successfully filed from 01.07.2017 till 27.12.2017, thereby highlighting that the network has been working and the petitioner has admittedly failed to file necessary returns along with proper documentation within the relevant time period for reasons other than technical difficulties. In contradiction to the large number of people who were filing the TRAN-1 Returns correctly within the prescribed time, the Petitioners and a handful of others did not do so. The number of TRAN-1 declarations successfully filed at the fag end of the limitation are enumerated below: Date TRAN-1 declarations successfully filed 24.12.2017 36349 25.12.2017 97939 26.12.2017 233455 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ITGRC to include non-technical TRAN-1 cases(errors apparent on the face of record) also covered by the order of Hon'ble High Court of Madras and any other Hon'ble High Court, sent by State or Central Authority, to the GST Council Secretariat by 31st January 2019, subject to the following conditions: (i) TRAN-1, including revision thereof, has been filed on or before 27th December, 2017 and there was an error apparent on the face of the record (such cases of error apparent on the face of the record will not cover instances where there is a mistake like wrong entry of an amount e.g. ₹ 10,000/- entered for ₹ 1,00,000/-); (ii) The case should be recommended to the ITGRC through GSTN by the concerned jurisdictional Commissioner or an officer authorized by him in this behalf (in case of credit of Central taxes/duties, by the Central authorities and in the case of credit of State taxes, the State authorities, notwithstanding the fact that the taxpayer is allotted to the Central or the State authority) Thus, a well-defined mechanism is already put in place for redressal of grievances of the genuine taxpayers who could not file / submit FORM TRAN 1 / TRAN 2 by the due d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. From the system log, it can be ascertained whether an attempt was made to access the data. Therefore, not only there is nothing arbitrary insisting on system log but a correct criterion to be adopted. 69. Petitioner then contended that insisting on system log as proof from the very system which has technical difficulties, is arbitrary and unworkable. There is no merit in this contention. It is not the case that common portal had stopped working or that none of the taxpayers could submit the declarations. As per the data given by the Respondents, thousands of registered users could submit their TRAN-1 Form declarations. In the affidavit-in-reply filed by the Commissioner, the number of entries made between the last four days of the closing facility of TRAN-1 has been placed on record. These are : 24 December 2017 - 36349; 25 December 2017-97939;26 December 2017-233455 and on 27 December 2017 - 165723. The object of bringing in Rule 117(1A) did acknowledge that certain registered user encountered technical difficulties in the common portal. However, it does not mean that the common portal had stopped working; only that some registered users could not submit their forms. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is a concession to be utilised in a time-bound manner, and further extension is given if the GST Council finds that there was a technical difficulty at its end. If there is no technical difficulty on the common portal for the registered user, this additional concession is not extended. Whether to grant further concession as Rule 117(1A) will be determined from examination the system logs from the portal. Exercise of equity jurisdiction in some cases and not in other cases would cause an anomalous situation, particularly when a time limit has been placed in a taxing statute for achieving certainty and finality." (X) The Hon'ble High Court of Rajasthan, in a similar matter, in the case of Shree Motors vs. Union of India (2020) SCCOnline Raj 381, held as follows: "29. A perusal of the above communication dated 12.12.2019 reveals that the GST Council referred to the ITGRC meeting, wherein, cases of the petitioners were considered and indicated that their cases fell in B-1 category and B-1 category has been described as 'as per GST system log, there are no evidences of error or submission/filing of Tran-1'. *** 31. In view of the fact that this Court while deciding the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Z) It is clear from the above discussions that the Government cannot be held responsible for negligence and dereliction of duty by a responsible taxpayer. Thus, Rule 117 and Rule 120 A of CGST Rules, 2017, prescribing time limit, are well within the ambit of Section 140 of the CGST Act, 2017 and nowhere goes beyond the Act. It may be noted that if the contention of the petitioner were to accepted by providing the facility of filing / revision of TRAN - 1, it would jeopardize Government revenue on account of similar demands from other taxpayers who could not file / revise in time due to negligence and it would be difficult for the Government to verify bonafides of such claims. Further, if the same ratio is accepted then any time limit provided in fiscal statutes like filing of statutory appeals, claim for refunds, issue of demand notices etc. would be necessarily challenged thereby setting a chaos in the system. 2. Writ Petitions challenging:- the constitutionality, vires and legality of Section 28 of the Central Goods and Services Tax (Amendment) Act. 2018 and Circular No. 87/06/2019-GST dated 02.01.2019 in as much as it retrospectively disallows the transition and carry forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FORM GST TRAN-I, duly signed, on the common portal specifying therein, separately, the amount of input tax credit of eligible duties and taxes, as defined in Explanation 2 to section 140, to which he is entitled under the provisions of the said section:" The Council agreed to this proposal. (C). In accordance with the decision of GST Council, Notification No. 15/2017 dated 01.07. 2017 was issued adding the words 'of eligible duties and taxes, as defined in explanation 2 to section 140' in Rule 117(1) of CGST Rules, 2017 w.e.f. 1.7.2017. As Education Cess (EC) and Secondary Higher Education Cess (SHEC) are not included in the "eligible duties and taxes" under Explanation 2 to section 140 of CGST Act, no credit of EC and SHEC was permissible under Section 140 of CGST Act, 2017. (D) The issue was further clarified vide 28th GST Council Meeting held on 21st July 2018. In this regard, agenda (Vol. I) for 28th GST Council Meeting may be referred where retrospective amendment to Section 140(1) of CGST Act, 2017 and Explanation 1 and 2 of section 140 of CGST Act, 2017 was proposed, along with addition of Explanation 3 in section 140 of CGST Act, 2017 to clarify that only transitional cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and therefore the amount lying in credit towards EC & SHE should be allowed for availing CENVAT Credit as both became a part of excise duty or service tax. It was observed by Delhi High Court that "It is no doubt that the two cesses, in the present case, were in nature of taxes and not fee, but it would be incorrect and improper to treat the two cesses as excise duty or service tax. They were specific cesses for the objective and purpose specified………"and further observed that EC & SHE did not subsume in the excise duty or service tax and accordingly dismissed the said writ petition. (H) Noticeably the two cesses and the excise duty and service tax was always treated as different and separate and cross utilization was never permitted. Thus, the Delhi High Court judgment made it clear that cesses and duties are separate levies and cannot be equated. As such, credit of Education Cess (EC) and Secondary Higher Education Cess (SHEC) cannot be carried forward. (I) In a similar issue, the Hon'ble High Court of Madras, vide its Order dated 05.09.2019, in the case M/s Sutherland Global Services Private Limited vs UoI &Ors. [in the W.P. No. 4773 of 2018 and WMP Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sales and certain specified sales are specifically excluded. (b) Concession of ITC is available on certain conditions mentioned in this section. (c) One of the most important condition is that in order to enable the dealer to claim ITC it has to produce original tax invoice, completed in all respect, evidencing the amount of input tax…. …13. For the same reasons given above, challenge to the constitutional validity of sub-section (20) of Section 19 of the VAT Act has to fail. When a concession is given by a statute, the legislature has power to make the provision stating the form and manner in which such concession is to be allowed. Sub-section (20) seeks to achieve that there was no right, inherent or otherwise, vested with dealers to claim the benefit of ITC but for Section 19 of the VAT Act." (B). Furthermore, in similar matter, there have been a no. of judgements of the Hon'ble Supreme Court/High Courts declaring that the credit is only in the form of concession/benefit and is not an accrued right. The relevant portion of which are reproduced below for reference, - (i) The Hon'ble Supreme Court in the case of TVS Motor Co. Ltd. v. State of T.N., (2019) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs under the existing law it self is not an absolute but are stricted or conditional right. It is subject to fulfillment or satisfaction of certain requirements and conditions that the right can be availed of." (C). Sub-Section (1) of Section 140 of the CGST Act, 2017, which deals with the transitional provisions, permits carry forward of the CENVAT credit of eligible duties. It is submitted that merely because a carry-forward of CENVAT Credit is permitted from the earlier regime to the new regime it does not mean that this right is absolute in nature and can be claimed over and above the present statutory regime. In fact, on the contrary the very fact that the Legislature had to provide for this right under the statute means that it is a statutory right, which can only be availed of in the as provided for in the statute. (D) From above, it is clear that a taxpayer cannot claim input credit of the duty or tax paid as a vested right under GST and input credit is in the form of a concession / benefit and reasonable restrictions on availing such credit can be imposed. Thus, a taxpayer cannot claim credit accumulated under the erstwhile taxation regime (Central Excise and Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is applicable to all the persons equally who are covered within its ambit. Further, freedom of trade, commerce and intercourse throughout the territory of India is also not restricted by the said provisions. (B) In respect of violation of Article 19(1)(g), question involved here is that whether the freedom of trade, commerce and intercourse is an absolute freedom? For an absolute freedom of trade, commerce and intercourse may lead to economic confusion and misuse of the same. Therefore, the wide amplitude of the freedom granted by Article 19(1)(g) and Article 301 is limited by Articles 302-305. (C) Parliament is given power to regulate trade and commerce in public interest under Article 302 subject to Article 303. As such, as enshrined by Article 301 of the Constitution of India freedom of trade, commerce and intercourse throughout the territory of India is also not restricted by the said amendment, rather Section 28 of CGST (Amendment) Act, 2018 is merely clarificatory in nature. 3. Writ Petitions stating that:- There is no procedure for availing credit of CVD and SAD paid by the petitioner for non-fulfillment of export obligations and thus it becomes a cost for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were imported under Advance Authorization without payment of applicable customs duties (BCD, CVD , SAD etc.) in pre-GST regime, subject to fulfillment of export obligation by the importer. (D) Thus, payment of customs dues (including CVD and SAD) on non-fulfillment of export obligations, as prescribed under EPCG Scheme, Advance Authorization Scheme etc. is in pursuance of the conditional assessment proceedings instituted under existing law (at the time of import. Hence, the instant case is amply covered under the provisions of clause (a) of sub-section (8) of Section 142 of the said Act and as per the provisions thereof, the amount recoverable is to be recovered under the existing law and the amount recovered is not admissible as input tax credit under the said Act. Accordingly, no input tax credit of the said quantum of CVD and SAD paid by the taxpayer after appointed day is admissible as per the said provisions. (E). Furthermore, the import which would have normally suffered duty but has escaped the same due to claiming benefit of EPCG scheme/ Advance Authorization Scheme, etc at the time of import. However, the benefit of duty free/ concessional duty at the time of impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsitional provisions laid under Section 139 to Section 142 of the CGST Act 2017, as discussed above, which specifically provides for transitional arrangement for CENVAT credit as input tax credit in GST regime. In the present case, Clause (a) of sub-section (8) of Section 142 of the CGST Act, 2017 specifically provides the mechanism to deal with such cases, as discussed above which does not allow for any input tax credit of amount of CVD and SAD paid after the appointed day. II. CENVAT CREDITS OR INPUT TAX CREDITS ARE NOT ABSOULTE/VESTED RIGHTS OVER AND ABOVE STATUE AND ARE SUBJECT TO STATUTORY PROVISIONS AND RULE UNDER WHICH THEY EXISTS (A) It may be noted that credit can be availed only to the extent allowed by law and reasonable restrictions on availing credit can be imposed. The contention of the petitioner that CENVAT Credit / Input Tax Credit are absolute / vested rights is fundamentally flawed, legally erroneous and ex-facie contrary to the law laid down by the Hon'ble Supreme Court in at least three (03) judgments which are detailed as below,- (i) In the case of Osram Surya Pvt. Ltd. vs. Commissioner of Central Excise, Indore, (2002) 9 SCC 20 the Hon'ble Supreme Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w for reference,- (i) The Hon'ble Supreme Court in the case of TVS Motor Co. Ltd. v. State of T.N., (2019) 13 SCC 403 that: "40. It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute;" (ii) Also, the Hon'ble Supreme Court, in the case of Assistant Collector of Customs vs. Anam Electrical Manufacturing Co. (2002 TIOL 650 SC CUS), relying on the case of Mafatlal Industries vs. Union of India (2002 TIOL 54 SC CX) held that,- "…… Pursuant to the directions given in Mafatlal Industries vs. Union of India 1997 (89) ELT 247 (SC) 1996 (9) SCALE 457, the appeals/ Special Leave Petitions coming up for disposal shall be disposed of in terms of one of the other of the clauses below: (1) Where a refund application was filed by the manufacturer/ purchaser beyond the period prescribed by the central Excise Act/ Customs Act in that behalf, such petition must be held to be untenable in law. Even if an any appeal, suit or writ petition, direction has been given that the refund application shall be considered wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable. III. DENIAL OF CREDIT VIOLATES ARTICLE 14 & 19(1)(g) OF THE CONSTITUTION. (A) Further, the petitioner is trying to invoke violation of Article 14 of the Constitution in the subject Petition. Although, taxing statutes are not outside the purview of Article 14, but there is catena of pronouncements of Hon'ble Supreme Court which highlights that Legislature enjoys wide latitude in taxation statutes and same should not be subjected to the minute gravities of Article 14. In this regard, the case laws of Federation of Hotel and Restaurant Association of India etc. Vs. Union of India & others, reported in 1988 AIR 1291 and Union of India vs Nitdip Textile Processors Pvt Ltd, reported in 2011 (273) ELT 321 may be referred. Further, in the cases of E.P. Royappa Vs State of Tamil Nadu, reported in AIR 1974 SC 555 and Maneka Gandhi Vs Union of India, reported in AIR 1978 SC 597, the Hon'ble Apex Court highlights that Article 14 strikes at arbitrariness in State action and ensures fairness and equality in treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: it must not be guided by any ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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