HC imposes cost on revenue for filing frivolous GST appeals on Transitional Credit Issue

Commissioner of GST Vs Checkpoint Apparel Labeling Solutions India Pvt. Ltd (Madras High Court)

We are constrained to observe that the Revenue Department, cannot be permitted to file such frivolous appeals by way of intra court appeals. The documents discussed above and quoted by us clearly establish beyond doubt that the Assessee had been making bona fide efforts to upload his declaration Form Tran 1. However, having faced technical glitches in the same, he was not only redirected to the help desk of the GST Department in the first communication dated 28 December 2017, where his request was registered as ID No.20171228912950, but the same does not appear to have been responded at all. Instead of solving the problem of their own infrastructure and technical glitches, the authorities created all kinds of problems by remaining a silent spectator and making the Assessee to run from pillar to post, against the clear intention of the Government to allow credit of the un-utilized input credit under the earlier tax regime and the input service tax and excise duty to be set off under the new GST regime, to which a switch over was made Government. The authorities should have acted in aid of this clear and unambiguous intention of the Government. But however, what they did was just the opposite of it, by not even accepting the manual submission of the said form Tran-1 by the Assessee, or by not extending the date suitably, once the portal could be accessed by the Assessee.

The order of the learned Single Judge was a straight, correct and innocuous order. Instead of complying with the same, the Department is seeking to raise all kinds of technical and hyper technical pleas before us in the present intra-court appeal. We strongly deprecate such practices of the Revenue Authorities in wasting the time of the court as well as wasting the resources of the State in filing such frivolous litigation. Therefore, we are inclined to impose cost on all the Appellants herein.

We further direct that the due benefit of input credit of stocks, as on 1.7.2017, shall be given to the Assessee either by accepting the offline copy of Form Tran-1 submitted by the Assessee or by allowing him to resubmit the same on E-portal of the GSTN by providing opportunity to Assessee to do it now.

The present Appeal of Revenue is accordingly dismissed with a token cost of Rs.15,000/- (Rupees Fifteen Thousand only) on the Appellants. The cost should be deposited with the Registrar General of this court, within a period of four weeks from today and the same will be transferred to the Legal Services Authority of the State, for being spent in the aid of legal aid of the poor.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

This Appeal has been filed by the Commissioner of GST & Central Excise, Chennai Outer Commissionerate, Chennai and four others, against the 14.02.2020, allowing the Writ Petition in W.P.No.3328 of 2020, filed by the Assessee, by which the learned Single Judge, following the two judgments of the Punjab and Haryana High Court and Gujarat High Court, referred to in paragraph 7 of the order, merely directed the Authorities of the Department, who are Appellants before us, to do the needful forthwith to enable the Assessee to upload the requisite Form Trans 1 in order to avail the unutilized credit under the new GST regime, which was introduced with effect from 1 July 2017.

2. Paragraphs 5 to 8 of the learned Single Judge is quoted below for ready reference :-

5. The requirement for an assessee to establish technical difficulty as expressed in Circular dated 03.04.2018, is reiterated in the provision. I am however, unable to understand as to how the assessee would have anticipated this requirement in order that it collects proof by way of screen shots and otherwise establish the factum of technical glitches.

6. Though Goods and Service Tax has been introduced to streamline multiple revenue enactments, the mass of litigation that Rule 117 has generated, has defeated the very object and purpose of the enactment. Transition, by itself, does not vest any right in the assessee. It is only utilisation of credit that does, and such utilisation is subject to verification and assessment by an Assessing Officer. It is thus vital that the distinction between transition of a credit and utilisation of such credit after verification by an Officer is taken note of in the proper perspective.

7. In fine, I allow this Writ Petition, drawing support from the following three decisions:-

i) Adfert Technologies Pvt. Ltd. V. Union of India (CWP No.30949 of 2018 (O&M) dated Judgment Dt.23.09.2020 in W.A.No.788 of 2020 Commr. Of GST vs. M/s.Checkpoint Apparel 04.11.2019 of the Punjab and Haryana High Court

ii) Avante Tablewares Throughs V. The Nodal Officer (C/SCA/5758/2019 dated 06.09.2019 of the Gujarat High Court and

iii) Siddharth Enterprises V. Nodal Officer (2019 (29) GSTL 664 of the Gujarat High Court

8. The exchange of communications between 28.12.2017 and 01.01.2020 reveal that the petitioner has been diligent in making efforts to open the portal and upload the forms and the respondents are directed to do the needful forthwith to enable the petitioner to upload the requisite forms. No costs.

3. Against the said innocuous order, what ought to have been complied with by the Appellants herein in letter and spirit, the Appellants have chosen to file the present Writ Appeal, which we are of the considered opinion is a frivolous litigation, totally unnecessary and a sheer wastage of time and money of the State. The appeal seems to have been filed by the ill-conceived advices given to the Appellants for filing the intra court Appeal in such a manner. Judgment Dt.23.09.2020 in W.A.No.788 of 2020 Commr. Of GST vs. M/s.Checkpoint Apparel

4. The facts in brief are as under:-

When the Assessee, wanted to avail the benefit under the relevant law of ‘Unutilized Credit’ under the new GST regime, he faced certain difficulties in uploading the prescribed Form Tran-1. Accordingly, vide email dated 28 December 2017, the Department, sent from its email i.d. cbecmitra.helpdesk@icegate.gov.in, informed the Respondent/Assessee to approach the GSTN helpdesk at helpdesk@gst.gov.in or call at Telephone No.0120-4888999. The said communication is quoted below for ready reference:-

From:cbecmitra.helpdesk@icegate.gov.in
<cbecmitra.helpdesk@icegate.gov.in

Sent: 28 December 2017 21:28

To: Felix T<Felix.T@checkpt.com>

Cc: Nirmala Jayakumar <Nirmala.Jayakumar@ch

Subject: Unable to file Tran-1 – GST# 33AAGCS9485A1ZA / 20171228912950

Dear Sir/Madam

Your Request ID is 20171228912950

Thank you for writing to us at CBEC Mitra Helpdesk.

We received your support request, and we understand that you are facing an issue in trans-1 on gst portal. To resolve this issue, please contact the GSTN helpdesk at helpdesk@gst.gov.in or call at 0120-4888999. 

Thanks and Regards,

5. When the said effort of the Assessee did not succeed, he submitted a letter to the Superintendent of Central Tax, Chennai, on 6 February 2018, which was sent by registered post on 09.02.2018, which reads as under :-

The Superintendent of Central Tax
M.M.Nagar Division,
MM Nagar Range
Chennai Outer Centre,
3rd Floor 40, Ranga Colony
Rajakilpakkam
Chennal – 600073

Sub: Manual Tran-1 filed – Redg.

Ref : GST# 33AAGCS9485A1ZA.

Dear Sir,

We would like to inform you that due to server Issue, we were unable to file Tran-1 before the due date which the option for filing has disabled. The issue has been addressed to CBC Mitra (Helpdesk) and below is the request ID for request your reference 

Request ID# 20171228912950

Hence we have filed manually to the local GST authority.

Enclosing the manually Tran-1 for your reference.

Kindly accept the same and do the needful on the above.

For Checkpoint Apparel Solutions India Pvt Ltd.

Signed/-

Authorised signatory

6. The Assessee’s said request under the I.D. given in the said communication was not attended to. But on the other hand, the Assistant Commissioner, GST Seva Kendra, Mr.Ayodhya Dawar, who has filed the present writ appeal, also supported by his Affidavit, rejected the said prayer of the Assessee, by communication dated 01.01.2020, which isalso quoted below for readyreference :-

To

M/s.Checkpoint Apparel Labeling Solutions India P Ltd. A1D, Industrial Complex, Anna Salal, Marai Malai Nagar, Chennai-603209.

Gentlemen,

Sub:-GST-Transitional Credit-Difficulties-faced-in-filing GST TRAN-01-and-TRAN-02-Grievance- reported-Request for allowing to file declarations to enable to claim transitional credit- Reg.

****

Please refer to your letter dt.14.11.2019 on the above

subject.

On perusal of your letter, it is noticed that you have not submitted any proof evidencing that you have  faced technical glitch in the GST common portal while filing TRAN-01, before due date.

In view of the above, it is informed that your representation  could not be forwarded to GSTN through Nodal Officer, as per Board’s Circular No.39/13/2018-GST dt.03.04.2018, Notification No.48/2018 Central Tax dt.10.09.2018 and Order No.04/2018 dt.17.09.2018. This is for your kind information please.

Yours sincerely,

(AYODHYA DAWAR)
Assistant Commissioner

GST Seva Kendra

7. Aggrieved by the same, the Assessee approached this Court by way of Writ Petition before the learned Single Judge, which came to be allowed by the aforesaid impuned order.

8. The presentappeal has been filed by the following authorities of the GST Department viz., (i)The Commissioner of GST & Central Excise, Chennai Outer Commissionerate, Chennai, (ii)The Asst. Commissioner of GST and Central Excise, Chennai Outer Commissionerate, Chennai, (iii)The Superintendent of Central Tax (CGST) Maraimalai Nagar Range, Maraimalai Nagar Division, Chennai, (iv)The Nodal Officer-GST Grievances, O/o the Principal of Commissioner of GST & Central Excise, Chennai, Service Tax Network, New Delhi.

9. The learned Counsel appearing for the Appellants/ Department Mr.Sunadreswaran, with all vehemence at his command, tried to emphasize that unless the Assessee submitted evidence of facing any technical glitches in uploading the said Form Trans -1, his request for availing such “unutilized credit” under the said old tax regime, which was substituted by the new GST Regime, with effect from 1 July 2017 could not be allowed and therefore, the Assistant Commissioner, GIST South Kendra, was justified in rejecting the said prayer of the Assessee. In the rejection letter dated 01.01.2020, the Assessee’s letter dated 14.11.2019 was also referred. The letter dated 14.11.2019 sent by the Assessee to the Nodal Officer is also reproduced below for ready reference:-

To

14.11.2019

The Nodal Officer- GST Grievances
O/o the Principal Commissioner of GST & Central Excise,
Chennai North Commissionerate
GST Bhawan,
26/1. Mahatma Gandhi Road, Chennai-600034

(Through proper jurisdictional officers-Chennai Outer Commissionerate)

Sir,

Sub:-GST-Transitional Credit-Difficulties faced in filing GST TRAN 1 and TRAN 2 – Grievance reported – Request for allowing to file declarations to enable to claim transitional credit – Regarding.

Ref: GSTIN:33AAGCS9485A1ZA.

We are a registered manufacturer of apparels accessories vide CE Registration No. AAGCS9485AXM001 under Service Tax code STC NO. AAGCS9485ASD001, under Tamil Nadu General Sales Tax vide TIN 33161602686 and CST- 797117.

On the appointed day, we had held stock of inputs and capital goods on which we carried forward input tax credit under the above existing laws.

2. Consequent to implementation of GST with effect from 01/07/2017, in terms of Rule 117 of the Central Goods and Services Tax Rules, 2017 (CGST Rules for short), we tried our best to file form TRAN 1 online but could not do so due to technical glitch the link being not opening. We have been contacting the jurisdictional officers. They have assured that the link would open shortly. Subsequently, the link was available, the TRAN form opened and data could be entered in the respective tables but could not be saved or submitted, since the save or submit options were not enabled. We could not proceed further, with result the TRAN 1 and subsequently TRAN 2 could not be filed. When the last day, 27t h December 2017, approached, we continuously tried for three days but unsuccessful.

3. In spite of our best efforts, We could not file the forms (sic) could not be filed on account of the technical glitches in terms of poor net connectivity and other technical difficulties on the common portal and hence sent a mail to CBEC Mitra Help Desk, immediately, the very next day, on 23 December, 2017 which is reproduced below.

“CBEC-Mitra-Helpdesk
Toll-free number: 18001200232
Email cbecmitra helpdesk@icegate.gov.in
Website: www.aces.gov.in
On Thu Dec 28, 2017 at 05:10 AM, Felix.T@checkpt.com
wrote:
Hi Team,

As discussed, am unable to file Tran-1 in the GST portal for the past 3 days.

Filing pending for CHECKPOINT APPAREL LABELING SOLUTIONS INDIA PRIVATE LIMITED (GST# 33AAGCS9485A1ZA)

Even I tried today to file the same, but the option is not enabled.

Requesting you to resolve the issue by help us (sic) in getting the same filed.

Thanks & RegardS,

Felix.T

Finance Execütlve

Checkpoint ALS India Pvt Ltd A1-D, Industrial Complex, Anna

Salai, Maraimalai Nagar, Kancheepuram Dist,

Tamil Nadu, India

Cell: 9600013632

To the above, mail we received following response:

“From:cbecmitra.helpdesk@icegate.gov.in<cbecmitra.helpde

sk@icegate.gov.in>

Sent:28 December 2017 21:35 :

To : Felix T <Felix.T@checkpt.com>

Cc.Nirmala Jayakumar <Nirmala.Jayakumar@checkpt.com>

subject : Unable to file Tran-1 GST# 33AAGCS9485A1ZA /

20171228912950

Dear Sir/Madam
Your Request ID is 20171228912950

Thank you for writing to us at CBEC Mitra Helpdesk.

We received your support request, and we understand that you are facing an issue in Trans-1 on gst portal. To resolve this issue, please contact the GSTN helpdesk helpdesk@gst.gov.in or call at 0120-4888999.

Thanks and Regards “

4. Since then we have talked to help desk who assured that the last date would be extended, and by that time the technical problems would get But the  problem persisted and the link was not enabled till now.

5. It is submitted that since we were not able form GST TRAN-1 within the date specified, i.e.27th December 2017, on account of, the technical difficulties, they had to physically lodge their claim of transitional credit on stock in the form GST TRAN-1 and GST TRAN-2 respectively with their Jurisdictional Officer.

5.1. Accordingly, as an alternative measure, we have reported the jurisdictional Range Office, Maraimalai Nagar Range, MM Nagar Division, Chennai Outer Commissionerate on 06.02/2018 expressing our difficulty/inability to file TRAN 1 online and submitted manually the form TRAN 1 to claim  transitional credit of credit at balance, (Copy enclosed for reference). We had also met the jurisdictional officer and explained our difficulty. We had not received any further directions or heard from the Department on this count thereafter.

6. We have following credits in balance as on 01/07/2017 to be availedas transitionalcredit.

Table 5(a) of TRAN I

Table 6(a) of TRAN 1

Table 6(b) of TRAN 1

7. In spite of our consistent efforts to file and claim the credit at balance on the appointed day as transitional credit, which is substantial, the same could not be done due to technical defects on the GST site.

8. In view of the above, we request the Nodal Officer, honourable Principal Commissioner, North Commissionerate, Chennai to kindly use his good offices to resolve this issue and to allow filing of declaration in form GST Tran-1 and GST Tran-2, to enable it to aim transitional credit of eligible duties in respect of inputs and capital goods held in stock on the appointed day in terms of Section 140(3) of the Central Goods and Services Tax Act, 2017 read with Rule 117 of the Central Goods and Services Tax Rules, 2017, (hereinafter referred to as, CGST the Rules).

9. It is respectfully submitted that declaration of the due date contemplated under Rule 117 of the CGST Rules to claim the transitional credit is being procedural in nature and thus merely directory and not a mandatory provision and kindly provide us the ad-interim relief as prayed for in the above para.

10. It is further submitted that when the Indirect Tax regime transitioned from the Central Excise regime to the Goods and Services Tax regime, the CGST Act, 2017, allowed carry forward of the CENVAT credit on the duty paid stock on the appointed day,i. e. 1st July 2017 because the  intention of the Government was not to collect  tax twice on  the same goods. It is pointed out that in such cases, it was provided that the credit of the duty/tax paid earlier would be admissible as credit.

11. Also the phrase,”technical difficulties on the common portal” in the CGST Act Rules, shall be given a liberal interpretation because it is a settled principle of law that an interpretation unduly restricting the scope of a beneficial provision should be avoided so that it may not take away with one hand what the policy gives with the other. And that the technology has been added to the system for the benefit and convenience of the taxpayers but it should not be subservient to the purpose and hence the impediments, if any, should not make the tax payer at loss for no fault of them.

12. It is needless to add that denial of the opportunity to avail the eligible credit balance on the appointed day consequent to transitionto GST regime from existing regime would render the tax payer to twice tax on the same goods that suffered tax already which is against the principle of taxation.

12.1. Moreover, the very purpose of avoiding cascading effect by extending the credit chain till the retailer is defeated if the credit is denied at the manufacturer end itself in spite of our best efforts to file and submit the declarations online as per the GST System.

13. The learned Commissioner is aware that there number of judgments from various delivered on the issue of allowing those taxpayers, who could not file the declarations within the time limit, to file the declarations and to claim transitional credit beyond the due date prescribed under Rule 117 of the CGST Rules, 2017 extended subsequently.

14. In view of the foregoing, it is humbly requested the Honourable Nodal Officer may be kind enough to use his good offices to permit us to file Form GST TRAN-1 and GST TRAN-2 respectively to enable us to claim transitional credit of the eligible duties of the inputs held in the stock on the  appointed day in terms of Section 140(3)of the Central Goods and Services Tax Act, 2017 read with Rule 117 of the Central Goods and Services Tax Rules, 2017.

Thanking you,
Yours faithfully,
For Checkpoint Apparel Labeling Solutions India Pvt
Signed/-
Authorized signatory

10. The learnedCounsel for the Revenue/Appellants, Mr.Sundareswaran, also submitted that since the time line for submitting these forms were not maintained by the Assessee, and no such evidence, as aforesaid, was produced by them, the credit cannot be availed, and submitting of manual declaration in Tran-1, as done with the communication dated 6 February 2018, cannot be accepted.

11. The learned Counsel for the Respondent/Assessee supported the impugned order of the learned Single Judge.

12. Having heard the learned Counsel for the parties, we are constrained to observe that the Revenue Department, cannot be permitted to file such frivolous appeals by way of intra court appeals. The documents discussed above and quoted by us clearly establish beyond doubt that the Assessee had been making bona fide efforts to upload his declaration Form Tran 1. However, having faced technical glitches in the same, he was not only redirected to the help desk of the GST Department in the first communication dated 28 December 2017, where his request was registered as ID No.20171228912950, but the same does not appear to have been responded at all. Instead of solving the problem of their own infrastructure and technical glitches, the authorities created all kinds of problems by remaining a silent spectator and making the Assessee to run from pillar to post, against the clear intention of the Government to allow credit of the un-utilized input credit under the earlier tax regime and the input service tax and excise duty to be set off under the new GST regime, to which a switch over was made Government. The authorities should have acted in aid of this clear and unambiguous intention of the Government. But however, what they did was just the opposite of it, by not even accepting the manual submission of the said form Tran-1 by the Assessee, or by not extending the date suitably, once the portal could be accessed by the Assessee.

13. The order of the learned Single Judge was a straight, correct and innocuous order. Instead of complying with the same, the Department is seeking to raise all kinds of technical and hyper technical pleas before us in the present intra-court appeal. We strongly deprecate such practices of the Revenue Authorities in wasting the time of the court as well as wasting the resources of the State in filing such frivolous litigation. Therefore, we are inclined to impose cost on all the Appellants herein.

14. We further direct that the due benefit of input credit of stocks, as on 1.7.2017, shall be given to the Assessee either by accepting the offline copy of Form Tran-1 submitted by the Assessee or by allowing him to resubmit the same on E-portal of the GSTN by providing opportunity to Assessee to do it now.

15. The present Appeal of Revenue is accordingly dismissed with a token cost of Rs.15,000/- (Rupees Fifteen Thousand only) on the Appellants. The cost should be deposited with the Registrar General of this court, within a period of four weeks from today and the same will be transferred to the Legal Services Authority of the State, for being spent in the aid of legal aid of the poor.

16. With these observations, the Writ Appeal is dismissed. Consequently, CMP No.10326 of 2020 is also dismissed.