Instructions issued by Revenue Department needs to be aligned with the decisions taken by the courts and the position of law as declared by the judgments
The Hon’ble Delhi High Court in M/s. Hero Motocorp Ltd. v. Union of India & Ors [Review Petition 318/2022 in W.P.(C) 2032/2019 dated December 15, 2022] has dismissed the review petition filed by the Revenue Department, and upheld the order passed by the Hon’ble Delhi High Court quashing the Instructions which prohibited the Input Service Distributor (“ISD”) from transitioning accumulated unutilized CENVAT credit. Further, held that, such instructions were not aligned with the decisions taken by the various courts and with the position of law as declared by judgments.
M/s Hero Motocorp Ltd. (“the Petitioner”) is an ISD, whose request for allowing credit of unutilized CENVAT credit got rejected by the Revenue Department (“the Respondent”) vide letter dated February 4, 2019 (“the Impugned Letter”) on the basis of Instructions dated February 5, 2018 (“the Instructions”) issued by the Respondent, which prohibited ISDs from transitioning accumulated unutilized CENVAT credit.
The Petitioner then filed a petition before the Hon’ble Delhi High Court in W.P. (C) 2032/2019, challenging the Impugned Letter wherein, the Court vide order dated October 10, 2022 (“the Impugned Order”) quashed the Instructions issued by the Respondent and held that, no effect will be given to the Impugned Letter issued to the Petitioner by the Respondent and allowed the Petitioner to transition unutilized CENVAT credit.
Hence, the Respondent has filed the present review petition concerning the directions contained in the Impugned Order regarding the Instructions that was quashed.
Whether the review petition filed by the Respondent is valid?
The Hon’ble Delhi High Court in Review Petition 318/2022 in W.P.(C) 2032/2019 held as under:
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The instant review petition/application has been filed on behalf of respondent no.4/applicant. The limited grievance that respondent no.4/applicant has is concerning the directions contained in paragraph 3 of our order dated 10.10.2022.
1.1 A perusal of the order dated 10.10.2022 would show that it was in continuation of the proceedings held on 19.09.2022. The relevant part of the order dated 19.09.2022 has been extracted in the order dated 10.10.2022.
2. A careful perusal of the extract of the order dated 19.09.2022 would show that we had not only referred to the impugned communication dated 04.02.2019, but also to the instruction dated 05.07.2018, which was incorrectly noted as 05.02.2017, on account of a typographical error in paragraph 3 of the order dated 19.09.2022.
3. It cannot be respondent no.4/applicant case that the challenge laid to the instruction dated 05.07.2018 was not in its knowledge.
4. It is also not in dispute that the impugned communication dated 04.02.2019 also refers to the instruction dated 05.07.2018. This aspect is evident upon a perusal of paragraph 11 of the communication that was impugned, i.e., communication dated 04.02.2019.
4.1. Therefore, clearly, the petitioner/non-applicant was not allowed to transition unutilized credit in respect of Input Service Distribution (ISD), inter alia, having regard to the instruction dated 05.07.2018.
5. Mr Harpreet Singh, who appears on behalf of respondent no.4/applicant, cannot but accept that the judgments referred to in paragraph 4 of our order dated 19.09.2022 have allowed the concerned petitioners to transition their accumulated credit in terms of Section 140 of the Central Goods and Services Tax Act, 2017 [in short “Act”].
5.1 Thus, clearly the instruction dated 05.07.2018 was not aligned with the decisions taken by the courts concerned in the judgments referred to in paragraph 4 of our order dated 19.09.2022.
6. Therefore, since this position was recognized, the prayers made in the writ petition were allowed, not as a matter of concession, but because of the position of law as declared by the judgments referred to in paragraph 4 of our order dated 19.09.2022. Since, we were in agreement with the ratio of those judgments, we allowed the relief prayed for by the writ petitioner.
7. We may also note, as is averred in the review petition/application, that even according to respondent no.4/applicant, the petitioner/non-applicant was entitled to relief in terms of the judgment rendered by the Supreme Court in Union of India & Anr. v. Filco Trade Centre Pvt. Ltd. 2022 (7) TMI 1232.
8. Therefore, according to us, review of order dated 10.10.2022 is not called for.
9. The review petition/application is, accordingly, closed.
(Author can be reached at firstname.lastname@example.org)
Notable decision indeed.