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TMI Blog2022 (5) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, a day after the service tax component pertaining to the payment was tendered by the assessee, together with a GST TRAN-1 form duly filled up. Since it is evident that the service tax return relating to the quarter ended June 30, 2017, immediately preceding the appointed date, was filed in accordance with the existing law and there is no dispute that it has been filed in the prescribed form since the Revenue has acted thereon, it is now necessary to see the impact of such service return filed in October, 2017 qua the entitlement of the assessee to obtain cenvat credit for the service tax component - it is Section 140(1) of the Act of 2017 which is the only guiding light. As noticed earlier, the relevant provision pertains to the cenvat credit carried forward in the relevant return. Cenvat credit is qualified in the amended provision by the additional words incorporated therein of eligible duties and further qualified by Rule 117 of the Rules of 2017 that refers to eligible duties and taxes . A fortiori, if the relevant return of an assessee irrespective of whether it was filed before the appointed date or not was furnished in accordance with the existing law and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id long after the appointed date of July 1, 2017 when the goods and services tax regime came to be embraced. The short ground raised by the Revenue in the show-cause notice in such regard was that since such payment of service tax was not made prior to the appointed date and could not have been reflected in the electronic ledger account maintained by the assessee as on the appointed date, in terms of Section 140 of the Central Goods and Services Tax Act, 2017, the assessee was not entitled to obtain any credit therefor. 5. There were other issues covered in the said show-cause notice of July 31, 2019 and these other aspects have been adjudicated upon, but they are not the subject-matter of the present proceedings. The assessee has accepted the adverse findings pertaining to such other aspects and there is no challenge thereto. The Revenue has only questioned the propriety of the assessee being allowed credit for the aforesaid sum of about Rs. 2.18 crores and Article 226 of the Constitution has been invoked in the absence of the Tribunal being constituted under the Act of 2017. To repeat, the challenge to the appellate order of January 8, 2021 which is assailed in the present pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority found no merit therein, particularly since, on a plain reading of the applicable provision, the assessee was entitled to obtain due credit for the aforesaid sum of Rs. 2,18,75,232/-. There is no doubt that to the extent the assessee availed of the locational exemption, it paid less tax; and, as a consequence, since cenvat credit is relatable to the tax actually paid, it obtained correspondingly lower cenvat credit. There is no merit in the ground and the appellate authority appropriately repelled the same. 10. Before engaging on the primary issue involved herein, judicial notice has to be taken of the complex and convoluted way in which the law and the procedure are reduced to writing in matters pertaining to revenue, especially GST. There are enactments which are qualified by rules that are modified by notifications which are exempted by periodic instructions handed down by the Department. It appears that there is a concerted attempt to make the matter more complex than it is actually is and for obvious reasons for a lot of the gravy to seep through the cracks. The matter may be emphasised by referring to a 2018 amendment of Section 140 of the Act of 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return pertaining to the quarter immediately preceding the appointed date was filed on October 24, 2017, a day after the service tax component pertaining to the payment was tendered by the assessee, together with a GST TRAN-1 form duly filled up. 14. The assessee refers to Rule 117 of the Rules of 2017 which requires every registered person entitled to take credit of input tax under Section 140 of the Act to submit a declaration electronically in the specified form GST TRAN-1 within 90 days of the appointed date. Since, a proviso to such Rule permits the Commissioner to extend the period by a further 90 days, by general notifications, which are not disputed, the period was extended till December 27, 2017. Thus, it is evident that the relevant GST TRAN-1 form was filed by the assessee within the time permitted. 15. Rule 3 of the Cenvat Credit Rules, 2004 indicates, inter alia, the various forms of service tax for which cenvat credit may be obtained. There is no dispute that the assessee in this case was qualified to obtain cenvat credit as the service tax on manpower and like services was levied originally under Section 66 of the Finance Act, 1994 and, subsequently, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further qualified by Rule 117 of the Rules of 2017 that refers to eligible duties and taxes . A fortiori, if the relevant return of an assessee irrespective of whether it was filed before the appointed date or not was furnished in accordance with the existing law and in the prescribed manner, the cenvat credit on account of service tax reflected therein could be availed of in terms of Section 140(1) of the Act of 2017. 19. The Revenue s contention that the tax component or duty component for which cenvat credit is sought must have been paid prior to the appointed date, is not supported by the clear words of Section 140(1) of the Act of 2017. In the event the relevant provision or any other incidental convoluted rule required the return to be filed prior to the appointed date, the Revenue s contention would have held good. However, the eligibility to obtain cenvat credit depends on what is indicated in the return and, as long as the return is in order, the cenvat credit cannot be denied. There is no dispute in this case that the return filed was in order. The eligibility or entitlement to obtain cenvat credit, in terms of Section 140(1) of the Act of 2017, is based on w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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