Page 186 - GSTL_2nd April 2020_Vol 35_Part 1

88 GST LAW TIMES [ Vol. 35
due to technical glitches. In the said case, the writ applicant had filed the writ
application for declaring Rule 117 of the CGST Rules, 2017 and form GST
TRAN-1 as ultra vires to Section 140(5) and Section 164 of the CGST Act, 2017 and
offend Article 14, 19(l)(g), 265 and 300A of the Constitution of India.
5.1 While in the case on hand, this Court has not declared the said Rule
117 of the CGST Rules, 2017 neither this Court has ordered the respondents to
carry forward Cenvat credit beyond the time-limit, but in the case on hand, the
respondents herein had tried to upload form GST TRAN-1, but it could not be
filed on account of technical glitches in terms of poor network connectivity and
other technical difficulties at common portal. Under the circumstances, this
Court has gone into the question that in such circumstances what would be the
remedy if a person who tries to follow Rule 117 of the CGST Rules, 2017 but,
without there being any fault on his side he could not upload the form due to
technical glitches. Therefore, this Court has followed the judgment in the case of
Filco Trade Centre Pvt. Ltd. (supra), wherein, after relying on number of judg-
ments of the Apex Court, the co-ordinate Bench of this Court had followed the
consistent findings of the Apex Court and held that the right accrued to the as-
sessee on the date when the paid tax on the raw materials or the inputs and that
right would continue by way of Cenvat credit. The Cenvat credit is therefore in-
defeasible. Following the said principle, this Court had directed the applicants
herein - original respondents to permit the respondents herein - original petition-
ers to allow filing declaration form in GST TRAN-1 and GST TRAN-2, so as to
enable them to claim transitional credit of the eligible duties in respect of the in-
puts held in stock on the appointed day in terms of Section 140(3) of the GST Act.
The co-ordinate Bench has also observed in paragraph 32 as under :
“32. For all these reasons we find that clause (iv) of sub-section (3) of Sec-
tion 140 is unconstitutional. We therefore strike down the same. Petitions
are allowed and disposed of.”
Thus, when the co-ordinate Bench had already declared clause (iv) of sub-section
(3) of Section 140 as unconstitutional, we do not have any hesitation to declare
Rule 117 of the CGST Rules, 2017 for the purpose of claiming transitional credit
as procedural in nature and should not be construed as mandatory provision. In
the two judgments of the Coordinate Bench, which are relied on by the applicant,
the above ratio of the Apex Court is not followed and, therefore, we are of the
view that the judgment in case of Filco Trade Center Pvt. Ltd. v. Union of India re-
ported in 2018 (17) G.S.T.L. 3 (Guj.) would be applicable to the facts of the pre-
sent case. In our order, we have already discussed the judgment of the Eicher Mo-
tors Ltd. v. Union of India reported in 1999 (106) E.L.T. 3 (S.C.) and in the judg-
ment rendered in the case of Collector of Central Excise, Pune v. Dai Ichi Karkaria
Ltd. reported in [1999 (112) E.L.T. 353 (S.C.)], which are also relied on by the Co-
ordinate Bench in the case of Filco Trade Center Pvt Ltd. (supra).
5.2 For the foregoing reasons, the present applications deserve to be
dismissed and are hereby dismissed. Notice is discharged in all the applications.
5.3 The applicants have not taken care to look into the previous judg-
ment of the co-ordinate Bench of this Court in the case of Filco Trade Centre Pvt.
Ltd. (supra) and have hurriedly filed these Misc. Civil Applications alleging the
order of this Court per incuriam is required to be deprecated.

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