Case Law Details
Paharpur Cooling Towers Ltd. Vs Union of India & Ors. (Calcutta High Court)
In the present case learned advocate appears on behalf of petitioner and submits, in transition to GST regime there was clerical error made by his client assessee, resulting in claim of short credit on transition. Since it is by result of clerical error and not technical glitch, the credit is being denied. There is no dispute regarding legality of the credit claimed by his client. Several High Courts have taken similar views in directing revenue to consider similar situations resulting from error.
The learned advocate submits in reply, ST-3 return was filed online but revised return could not be so filed and therefore filed manually. The revision by TRAN – 1 needs to be done. He reiterates, several High Courts have expressed the view that it can be done. By notification dated 9th October, 2019 there was amendment to rule 117 of CGST Rules, 2017, to extend the deadline for filing of GST TRAN – 1 form till 31st December, 2019. State goes unrepresented in spite of having been represented earlier.
Article 300A provides that no person shall be deprived of property saved by authority of law. While right to the property is no longer a fundamental right but it is still a constitutional right. CENVAT credit earned under the erstwhile Central Excise Law is the property of the writ applicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. It could have been appropriated by the government by providing for the same in the CGST Act but it cannot be taken away by virtue of merely framing Rules in this regard.
In view of notification dated 9th October, 2019 on extension of time to file GST TRAN – 1 form till 31st December, 2019, vires challenge is not pressed by the learned advocate. On aforesaid facts, going by view taken by several High Courts and particularly those mentioned above, petitioner stands entitled to file revised GST TRAN – 1 form up to 31st December, 2019. Since Revenue has not acted upon the law whereby CENVAT credit can be denied but is otherwise resisting claim for availing the credit on omission by error on uploaded GST TRAN -1 form, the resistance cannot be sustained. With above observations, this writ petition is disposed of.
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