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TMI Blog2021 (4) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The sole respondent was paying service tax and on account of the Constitutional Amendment introducing GST w.e.f., 1.7.2017, the Central Excise and Service Tax levies came to an end under the GST regime. 3. A show cause notice was issued on 7.9.2018 by the Director General of GST Intelligence, Bengaluru Zonal Unit and in the show cause notice, it was stated that the respondent has not paid the service tax, he has failed to file the half yearly service tax returns in Form ST-3 and hence, he was directed to show cause as to why he is not liable to pay a sum of Rs. 13,06,07,137/- as service tax. 4. The facts further reveal that in the show cause notice, the respondent was also called upon to show cause as to why a sum of Rs. 91,87,632/- which has been paid by him earlier be appropriated towards the above mentioned payment and it was further directed in the show cause notice as to why a total CENVAT credit of Rs. 4,15,14,081/- as per ST-3 returns filed in July, 2018 and August, 2018 for the period from October 2012 to June 2017, should not be denied. 5. The Parliament enacted a Scheme called Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS for short) vide Finance (No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also disallowed. Therefore, the amount of Rs. 6,69,16,262/- was reduced by the pre-deposit of only Rs. 1,06,90,100/-. Consequently, the 1st appellant estimated the final tax payable by the respondent as Rs. 5,62,21,162/-. 10. The respondent submits that pursuant to the above, the respondent attended the personal hearing on 14.2.2020 and made written submissions in support of his claim. The respondent also filed Form SVLDRS-2A electronically on 17.2.2020 requesting for a personal hearing. 11. The respondent submits that on 29.2.2020, the 1st appellant issued a statement in Form SVLDRS-3 confirming the estimate made in Form SVLDRS-2 and indicating the final tax payable by the respondent as Rs. 5,62,21,162/- as against Rs. 1,45,87,081/- declared by the respondent. 12. The respondent being aggrieved by the statement issued in Form SVLDRS-3, dated 29.2.2020 came up before this Court by filing a writ petition and the issue involved before the learned Single Judge was, whether the respondent (petitioner) was entitled to take advantage of CENVAT credit on input tax amounting to Rs. 4,15,14,081/- and whether the same has to be treated as pre-deposit under the Scheme or not. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service provider pays an amount equal to the Cenvat credit availed on such input service and once the said payment is made, the output service provider is entitled to take the credit of the amount equivalent to the Cenvat credit paid earlier subject to the other provisions of these rules. However, fifth proviso to Rule 4(7) of the Cenvat Credit Rules, 2004 lays down a condition that no Cenvat credit is allowed to be taken after one year of the date of issue of any of the documents specified in Sub-rule (1) of Rule 9 of Cenvat Credit Rules, 2004. It is pertinent note that with effect from 01st July, 2017, the Cenvat Credit Rules, 2004 have been superseded and replaced with new Cenvat Credit Rules, 2017 vide Notification No.20/2017 C.E. (NT) dated 30.06.2017 as per which the provider of output service is allowed to transfer the credit of service tax paid on input services under the negative list regime only to the extent of such credits whose details are declared in TRAN-1 or TRAN-2 filed in accordance with Section 140 of Central Goods and Services Tax Act, 2017 read with Rule 15 of the Cenvat Credit Rules, 2017." 15. Learned counsel for the appellants has vehemently argued before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot paid the service tax. He has failed to file the half yearly service tax in Form ST-3 and he was directed to show cause as to why he is not liable to pay a sum of Rs. 13,06,07,137/- as service tax. 20. The facts further reveal that in the show cause notice the respondent was also called upon to show cause as to why a sum of Rs. 91,87,632/-, which has been paid by him earlier be appropriated towards the above mentioned payment and it was further directed in the show cause notice as to why the total CENVAT credit of Rs. 4,15,14,081/- as per ST-3 returns filed in July, 2018 and August, 2018 for the period from October 2012 to June 2017 should not be denied. 21. A Scheme was enacted by the Parliament known as Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 vide Finance (No.2) Act, 2019 and the object of the Scheme was to provide one time measure for liquidation of past disputes of service tax. The Scheme came into force vide notification dated 21.8.2019 and the respondent/assessee submitted an application in the prescribed format under the Scheme on 28.12.2019 by applying electronically in Form SVLDRS-1. 22. The dispute in the present case is that the appellants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 does not have any authority to modify the SVLDS-3 at all. When once the appellants have adjusted the claim of respondent as the CENVAT credit of Rs. 4,15,14,081/- availed by the respondent and subsequently, utilized, is an inadmissible CENVAT credit and availment of the same is proposed to be denied in show cause notice. Therefore, in the light of Rule 6(1) of the CENVAT Credit Rules, 2017, by no stretch of imagination the respondent was entitled to claim CENVAT credit. 27. It is pertinent to note that the CENVAT credit is a concession and not a vested right as held in the case of TVS Motor Company Ltd., vs. The State of Tamil Nadu and Ors., reported in 2019(13) SCC 403. Similarly in the case of Nelco Limited vs. The Union of India and Ors., reported in 2020(36) GSTL 24, the Division Bench of Bombay High Court, in paragraph 42 has held as under; "42. The decision of the Supreme Court in the case of Collector of Central Excise, Pune v. Dai Ichi Karkaria Ltd., MANU/SC/0467/1999; 1999 (112) ELT 353 (SC) cited by the petitioner refers to MODVAT credit and in deciding a corelation of the raw material and final p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case does not arise. 32. Reliance has also been placed upon the judgment in the case of Seventh Plane Networks Pvt.Ltd., vs. Union of India, reported in 2020 (41) GSTL 165 (Del). This Court has carefully gone through the judgment delivered by the Delhi High Court as well as the Circular issued by the Finance Department dated 27.8.2019 and 12.12.2019. 33. The present case is altogether having a distinguishable feature. In the present case, the respondent is not entitled to claim CENVAT credit in the manner and method it has been done. CENVAT Credit cannot be carried forward as input tax credit and there cannot be any adjustment on predeposit as the respondent has not filed GST TRAN-1. Therefore, the CENVAT credit cannot be transformed into input tax credit. It is an undisputed fact that the respondent has not filed ST-3 returns till the intervention of the department and the assessee however filed a declaration in the year 2019, after introduction of GST. As the respondent has not filed the GST TRAN-1, he is not eligible on account of Rule 6(1) of the CENVAT Credit Rules, 2017. The Designated Committee was justified in passing the order which was subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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