Page 73 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] NELCO LTD. v. UNION OF INDIA 31
not originate from Section 140, since the only phrase used in this regard is ‘in
such manner as may be prescribed’. Several decisions have been cited on the
proposition that this phrase cannot confer power to prescribe time-limit. The Re-
spondents, however, have relied upon Section 164 of the Act. Nevertheless, for
completeness, we refer to the contentions of the Petitioner regarding Section 140
and the phraseology used for the rule-making power.
21. Chapter XX of the Act deals with Transitionary Provisions. Section
139 is of migration of existing taxpayers, which states that from on and from the
appointed day, every person registered under the existing laws and having a
valid Permanent Account Number, would be issued a certificate of registration
on a provisional basis. Section 139 states that the conditions of form and manner
would be as prescribed. The final certificate and the conditions thereof would be
as prescribed. Section 140 deals with the transitional arrangement of input tax
credit. Section 140 of the CGST Act reads :
“140. (1) A registered person, other than a person opting to pay tax under
section 10, shall be entitled to take, in his electronic credit ledger, the
amount of CENVAT credit of eligible duties carried forward in the return
relating to the period ending with the day immediately preceding the ap-
pointed day, furnished by him under the existing law in such manner as
may be prescribed :
Provided that the registered person shall not be allowed to take credit in
the following circumstances, namely :-
(i) where the said amount of credit is not admissible as input tax
credit under this Act; or
(ii) where he has not furnished all the returns required under the
existing law for the period of six months immediately preced-
ing the appointed date; or
(iii) where the said amount of credit relates to goods manufac-
tured and cleared under such exemption notifications as are
notified by the Government.
(2) A registered person, other than a person opting to pay tax under sec-
tion 10, shall be entitled to take, in his electronic credit ledger, credit of the
unavailed CENVAT credit in respect of capital goods, not carried forward
in a return, furnished under the existing law by him, for the period ending
with the day immediately preceding the appointed day in such manner as
may be prescribed :
Provided that the registered person shall not be allowed to take credit un-
less the said credit was admissible as CENVAT credit under the existing
law and is also admissible as input tax credit under this Act.
Explanation. - For the purposes of this sub-section, the expression “una-
vailed CENVAT credit” means the amount that remains after subtracting
the amount of CENVAT credit already availed in respect of capital goods
by the taxable person under the existing law from the aggregate amount of
CENVAT credit to which the said person was entitled in respect of the said
capital goods under the existing law.
(3) A registered person, who was not liable to be registered under the ex-
isting law, or who was engaged in the manufacture of exempted goods or
provision of exempted services, or who was providing works contract ser-
vice and was availing of the benefit of Notification No. 26/2012-Service
Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer
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