Page 62 - GSTL_7th May 2020_Vol 36_Part 1

20 GST LAW TIMES [ Vol. 36
Learned Advocate Mr. Ankit Shah waives service of notice of rule for and on be-
half of the respondents.
2. By this petition under Article 226 of the Constitution of India, the pe-
titioner has prayed for the following reliefs :
“(A) Your Lordships be pleased to issue a writ of mandamus or any such
appropriate writ order or direction directing the concerned re-
spondents to immediately consider and allow the Transition credit
to the petitioner, based on the manual TRAN-1 form, if so required,
and transfer the entire Rs. 1,15,35,563/- towards service tax credit,
in terms of Section 140(3) of the Central Goods and Services Tax
Act, 2017 and allow filing/uploading of Form GST-TRAN-1 now;
(B) Any other further relief that may be deemed fit in the facts and cir-
cumstances of the case may also please be granted.”
3. The petitioner is registered under the provisions of the Central
Goods and Services Tax Act, 2017 (for short, ‘the Act, 2017’).
4. It is the case of the petitioner that Section 140 of the Act, 2017 pro-
vides that the petitioner is entitled to carry forward credit of Cenvat as availa-
ble/admissible on the day immediately preceding the appointed day i.e. 1st July,
2017 read with Rule 117 of the Central Goods and Services Tax Rules, 2017 (for
short, ‘the Rule 2017’). According to the petitioner, the petitioner tried to upload
Form GST TRAN-1 to claim credit amounting to Rs. 1,15,35,563/- for their firm
towards service tax credit. However, due to technical glitches in the GST portal,
the petitioner could not file/upload the Form GST TRAN-1.
5. It is the case of the petitioner that time and again the petitioner ap-
proached the GST Department as well as jurisdictional Nodal Officer appointed
by the GST Department for redressal of its grievances. In spite of the efforts
made by the petitioner, the case of the petitioner was not considered by the com-
petent authority so as to enable the petitioner to claim credit of Cenvat in view of
transitional provisions of Section 140 of the Act, 2017 as on 1st July, 2017.
Learned Advocate Mr. Mishra for the petitioner submitted that the petitioner is
entitled to credit of Cenvat as well as service tax as on 30th June, 2017 as per the
provisions under Section 140(1) of the Act, 2017 read with Rule 117 of the Rules,
2017.
6. Learned Advocate for the petitioner relied upon the decision of a
Coordinate Bench of this Court in the case of M/s. Siddharth Enterprises v. The
Nodal Officer in Special Civil Application No. 5758 of 2019 and allied matters de-
cided on 6th September, 2019 [2019 (29) G.S.T.L. 664 (Guj.)], wherein it is held
that the petitioner is entitled to transitional credit of Cenvat as well as service tax
as it is the legitimate right of the petitioner to carry forward credit of Cenvat as
well as service tax under the Act, 2017 :
“38. By not allowing the right to carry forward the CENVAT credit for not
being able to file the form GST Tran-1 within the due date may severely
dent the writ-applicants working capital and may diminish their ability to
continue with the business.
Such action violates the mandate of Article 19(1)(g) of the Constitution of
India.
39. This High Court, in the case of Indsur Global Ltd. v. Union of India, re-
ported in 2014 (310) E.L.T. 833 (Guj), has held as under :

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