1. Rule returnable forthwith. Mr. Nirzar Desai, the learned counsel waives service of notice of rule for and on behalf of the respondents nos.1 and 2. Mr. Soaham Joshi, the learned AGP waives service of notice of rule for and on behalf of the respondents nos.3, 4 and 5.

2. By this writ-application under Article 226 of the Constitution of India, the petitioner prays for the following reliefs:

“25(A) be pleased to issue a writ of mandamus directing the learned Respondents to act on the representations made by the petitioner and grant transitional input tax credit under Section 140 of the GST Acts as claimed by the petitioner in GST TRAN-1 which is “saved” but not “filed”;

(B) Pending notice, admission and final hearing of this petition, be pleased to direct the learned respondents to act on the representations made by the petitioner and grant transitional input tax credit under Section 140 of the GST Acts as claimed by the petitioner in GST TRAN-1 which is “saved” but not “filed”;

(C) Ex-parte ad-interim relief in terms of prayer B may kindly be granted;

(D) Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray.”

3. At the outset, Mr. Soaham Joshi, the learned AGP has drawn the attention of the Court that in the 4th meeting of IT Grievance Redressal Committee [ITGRC] held on 12th February, 2019, it is observed by the respondent no.2 that the case of the petitioner is falling under ‘not having technical glitch’ and therefore, the petitioner was not allowed to upload the Form GST TRAN-1.

4. On the other hand, Mr. Uchit Sheth, the learned counsel appearing for the petitioner submitted that at the time of uploading the Form GST TRAN-1 due to technical glitch, the same could not be uploaded, but the petitioner could able to save the form online. According to Mr. Sheth, there is no fault on the part of the petitioner so as to avail the benefit of transitional credit as per the Section 140 of the Central/ Gujarat Goods and Service Tax Act, 2017.

5. The facts are not in dispute. The petitioner is a Private Limited Company. In order to avail the benefit of Cenvat Credit of ₹ 20,17,744/as per the return filed under the Excise Act for the quarter ending on 30th June, 2017 and excess credit balance of ₹ 1,12,428/as per the return filed under the Finance Act for the month ending on 30th June, 2017 for service tax was entitled to carry forward the same under the provisions of Section140 of the Central/Gujarat Goods and Service Tax Act, 2017, [herein after referred to as ‘The Act, 2017’] read with Rule 117 of the Central Goods and Services Tax Rules, 2017 [hereinafter referred to as, ‘The Rules’].

6. It was submitted that the petitioner tried to upload the Form GST TRAN-1 as prescribed under Rule 117 of the GST Rules, however, the same could not be uploaded but the petitioner was able to save the form online.

7. It was submitted that in view of the above facts and as per the Rules, the Order No.1/2020-GST, dated 7th February, 2020 passed by the Central Board of Indirect Taxes and Customs with regard to the extension of the time limit for submitting the declaration in Form GST TRAN-1 under Rule 117 (1A) of the Central Goods and Services Tax Rules, 2017 in certain cases, the respondents may be directed to permit the petitioner to upload Form GST TRAN-1. The order dated 07^th February, 2020 reads thus:

F. No. CBEC-20/06/17/2018-GST(Pt.I)

Government of India

Ministry of Finance

(Department of Revenue)

(Central Board of Indirect Taxes and Customs)

***

New Delhi, the 7th February, 2020

Order No.01/2020-GST

Subject: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 117(1A) of the Central Goods and Service Tax Rules, 2017 in certain cases.

In exercise of the powers conferred by subrule (1A) of rule 117 of the Central Goods and Services Tax Rules, 2017 read with Section 168 of the Central Goods and Services Tax Act, 2017, on the recommendations of the Council, and in supersession of Order No.01/2019GST dated 31.01.2019, except as respects things done or omitted to be done before such supersession, the Commissioner hereby extends the period for submitting the declaration in FORM GST TRAN-1 till 31st March, 2020 for the class of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and whose cases have been recommended by the Council.

Sd/

(Yogendra Garg)

Principal Commissioner (GST)

8. In view of the aforesaid Order No.01/2020 of the GST, the grievance of the petitioner can be redressed, if the respondents are directed to allow the petitioner to upload the Form GST TRAN-1 on or before 31st March, 2020.

9. Moreover, the petitioner is entitled to claim credit of Cenvat as per the decision of the Coordinate Bench of this Court in the case of M/s. Siddharth Enterprises Vs. The Nodal Officer; Special Civil Application No.5758 of 2019 and allied matters; decided on 6th September, 2019, wherein, it is held that the petitioner is entitled to avail the benefit of Cenvat Credit under Section 140(3) of the Act irrespective of time limit prescribed under Rule 117 of the Rules as under:

42. 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.

43. In the result, all the four writ-applications succeed and are hereby allowed. The respondents are directed to permit the writ-applicants to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the Act. It is further declared that the due date contemplated under Rule 117 of the CGST Rules for the purposes of claiming transitional credit is procedural in nature and thus should not be construed as a mandatory provision.

10. In view of the above, the respondents are directed to permit the petitioner to upload the Form GST TRAN-1, which is saved by the petitioner as per the Order No.1/2020-GST, dated 7th February, 2020 passed by the Central Board of Indirect Taxes and Customs. Such exercise shall be completed within a period of two weeks from the date of the receipt of the order.

Rule is made absolute to the aforesaid extent with no order as to cost. Direct service is permitted.