Madras High Court Division Bench stays order of single judge in Matter relating to transition of education cess, secondary and higher education cess and krishi Kalyan cess into the Gst regime.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
Mr.Raghavan Ramabhadran for M/s.Lakshmi Kumaran & Sridharan has entered appearance through Caveat for the first respondent. Mr.Mohammed Shafiq, learned Special Government Pleader (Taxes) takes taxguru.in notice on behalf of the second respondent. Mr.V.Sundareswaran, Standing Counsel takes notice on behalf of the third respondent. Service to respondents is therefore complete.
2. Heard the learned counsel appearing for the parties. Ms.Aparna Nandakumar, learned Senior Standing Counsel appearing for the appellant Revenue has argued that after the deletion of the Education Cess (EC) and Secondary and Higher Education Cess (SHEC) with effect from 01.03.2015 and 01.06.2015 respectively by the Finance Acts, the Assessee could not claim any Input Tax Credit (ITC) with respect to such Cess paid by it against the GST liability, which law came into effect from 01.07.2017. The learned Single Judge has however allowed the writ petition filed by the Assessee / first respondent herein against the communication dated 14.02.2018 addressed to the Assessee in this regard and aggrieved by the same, the Revenue has filed the present Writ Appeal.
3. Learned Senior Standing Counsel appearing for the Revenue further submitted that the Delhi High Court, in the case of “Cellular Operators Association of India -Vs- Union of India (MANU/DE/0710/2018)” has held in favour of the Revenue that such credit could not allowed to the She has further submitted that no other contra view of any other High Court is available.
4. On the other hand, Raghavan Ramabhadran, appearing on Caveat for the first respondent submitted that, in the case of “Eicher Motors Limited -Vs- Union of India [ 1999 (106) E.L.T.3 (S.C.)]” , dealing with the provisions of Rule 57F(4A) of the Central Excise Rules 1944 regarding MODVAT Credit, the Supreme Court of India has allowed such credit on the ground that there were no specific lapsing provisions enacted by the State.
5. The writ petition was filed by the Assessee against the taxguru.in communication dated 14.02.2018, asking the petitioner to reverse the amount of Rs.1,03,08,706/- as the provisions of Section 140 of CGST Act read with Rule 117 of CGST Rules does not cover the Cesses such as Education Cess, Secondary and Higher Education Cess and Krishi Kalyan
6. Heard for interim relief In the facts and circumstances of the case, we consider it appropriate to stay the operation of the order of the learned Single Judge, as it is likely to be applied in other such similar cases.
7. Post the matter after six weeks.