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TMI Blog2020 (11) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. Rule. Rule made returnable forthwith. By the consent of the Counsel for the parties, the matter is taken up for final hearing. 2. Being aggrieved and dissatisfied by the inaction on the part of the Respondent authorities in not giving Input tax credit to the claim of the Petitioner pursuant to the Board Circular No. 39/13/2018-GST dated 3rd April, 2018, the Petitioner has sought to not only challenge the said inaction but also to challenge the vires of Rule 117 and Rule 118 of the Central Goods and Service Tax Rules, 2017 as null and void and ultra vires Section 140 (1), Section 140 (3) and Section 9 of the Central Goods and Services Tax Act, 2017 and Article 14, 19, 246, 248, 265, 268A, 286 and 302 read with entry 41 and 83 of list 1 of Schedule VII of the Constitution of India and as also being beyond the legislative competence of the Parliament under Article 269-A of the Constitution of India and has prayed for the following reliefs:- (a) that this Hon'ble Court may be pleased to issue Any writ, order or direction more particularly in the nature of a Writ of Declaration to declare Rule 117 and Rule 118 of Central Goods and Service Tax rules 2017 as null, void and ultr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of MVAT. 5. Post introduction of the CGST Act, 2017 with effect from 01.07.2017, pursuant to the transitional provisions contained in Chapter XX of the CGST Act, 2017 as well as under Chapter XX of the Maharashtra Goods and Services Tax Act, 2017 ("MGST Act"), the Petitioner was entitled to carry forward Input tax credit as on 30.06.2017 in the TRAN-1 form for the period from 01.07.2016 to 30.06.2017 totaling an amount of Rs. 79,44,237.61/-, under Section 140 of the CGST Act read with Rule 117 of the CGST Rules and Rule 118 of the MGST Rules. 6. Petitioner submits that Section 140 of the CGST Act read with Rule 117 of the CGST Rules requires a migrated registered supplier to file a declaration (in electronic form) under form TRAN-1 intimating/disclosing details of CENVAT credit of tax paid on inputs, capital goods, input services in order to carry forward the same to the electronic credit ledger/input tax credit account under the CGST Act, 2017. The declaration/form was required to be filed within a period of 90 days from the appointed date i.e. 01.07.2017, which time limits were extended to 27.12.2017, then to 31.03.2019 and finally to 31.12.2019. It is submitted that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAN-1 portal to enable Petitioner to file TRAN-1 electronically and to claim credit in electronic credit ledger. 14. Vide letters dated 11.12.2018, 12.12.2018 and 31.03.2019, Petitioner sent reminders to the Respondents with respect to its application made pursuant to the CBIC circular dated 3.04.2018. 15. Petitioner submits that since the Petitioner has not received any clarity from the Respondents with regard to the carry forward of the CENVAT credit in respect of its application, it has been left with no option but to file the present Petition as a result of the hardship caused to the Petitioner. Petitioner has also raised grounds challenging the vires of Rule 117 and Rule 118 of the CGST Rules as ultra vires Sections 140 (1), 140 (3) and Section 9 of the CGST Act as well as ultra vires the Constitution of India as mentioned above. 16. Respondents have filed reply submitting that the issue involved in the Petition is no more res-integra and is covered by the Judgment dated 20.03.2020 passed by this Court in the case of NELCO Limited V/s Union of India and Ors. (Writ Petition No. 6998 of 2018). It is submitted that Petitioner's application for manual GST TRAN-1 dated 7.5.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B. Mishra for the Respondents. We have also perused the papers and proceedings in this Petition. 21. This is a case, where admittedly Petitioner could not file GST TRAN-1 on or before 27.12.2017 but had manually applied for GST TRAN-1 on 7.5.2018 as per Circular dated 03.04.2018 within the timeline as per the date extended by this Court. Also admittedly the Respondents have found the Petitioner to be eligible for credit amounting to Rs. 78,62,466/-. But the credit for the same has been denied as the ITGRC found that the Petitioner has not tried to save or submit or file TRAN-1 before 27.12.2017. We are informed by the learned counsel for the Petitioner which is not controverted by the learned Sr. counsel for the Respondents that this information of rejection of the Petitioner's application for manual GST TRAN-1 has not been communicated to the Petitioner despite several reminders/ communications from the Petitioner and it is only by way of the affidavit in reply filed to this Petition that the Petitioner has become aware of the rejection. 22. Be that as it may, it is true that the above circular has been issued keeping in mind cases where difficulties have been faced by a sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own decisions in various cases including the decision in the case of Kedarnath Jute Manufacturing Co. V/s. Commissioner of Income Tax, Supreme Court allowed the appeal while quoting Lord Denning [in the case of Wells Vs. Minister of Housing and Local Government: 1967 (1) WLR 1000] as under : "Now I know that a Public Authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying upon a technicality and this is a technicality". 25. Supreme Court also quoted Francis Bennion in his"Statutory Interpretation", 1984 edition at page 683 as under: "Unnecessary technicality : Modern Courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purposes of the legislation." 26. The above decision and particularly the above quotes to our mind aptly describe the situation at hand. 27. In view of our above discussion, as admittedly in this case the Respondents have found the Petitioner to be eligible for input credit amounting to Rs. 78,62,466/-, in our view the finding of the ITGRC would in the face of the admission by the Respondents to the amount of credit, wou ..... 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