Page 86 - GSTL_7th May 2020_Vol 36_Part 1

44 GST LAW TIMES [ Vol. 36
is arbitrary, unreasonable and violative of Articles 14 and 19(l)(g) of the
Constitution of India.
57. We would refer to the Judgments which are heavily relied upon in this
context. It is stated that the rights and privileges accrued during the exist-
ing law have been specifically saved under Section 174 of the CGST Act,
2017. If what are saved are the rights and privileges of the nature noted
above, then it cannot be said de hors the conditions or de hors the restriction
on availment or enjoyment of that right they have been saved by the CGST
Act. In other words, if rights are conferred with conditions under the exist-
ing law, then, they are saved by the CGST Act with such conditions and not
otherwise. There must be clear provision to grant it otherwise than in terms
of the existing Law or in other words, the restrictions or conditions on
availment of that right are removed totally. No such provision has been
brought to our notice. It is clear that if right to availment of CENVAT credit
itself is conditional and not restricted or absolute, then, the right to pass on
that credit cannot be claimed in absolute terms. It is argued that it is a vest-
ed right accruing to the petitioner.
58. In the case of Eicher Motors (supra), what was in issue before the Su-
preme Court must be noted. In Eicher Motors, the Three Judge Bench of the
Supreme Court of India was concerned with the validity and application of
the scheme, as modified by introduction to Rule 57F [read as 57F(4A)} of
the Central Excise Rules, 1944, under which credit which was lying unu-
tilised on 16-3-1995 with the manufacturers, stood lapsed in the manner set
out in the provision. That was questioned.
60. In para 5 of this Judgment, the introduction was traced and it was held
that if on the inputs the assessee had already paid the taxes on the basis that
when the goods are utilised in the manufacture of further products as in-
puts thereto, then, the tax on these goods gets adjusted which are finished
subsequently. Thus, a right accrued to the assessee on the date when they
paid the tax on the raw materials or the inputs and that right would contin-
ue until the facility available thereto gets worked out or until those goods
existed. Thus, this is a case where the Rule, as introduced, provided for to-
tal lapsing of that credit which was lying unutilised with the manufacturer
on 16-3-1995. That was held to be impermissible within the scheme of the
law. We are not considering here such a situation.
61. We are not confronted with a situation of the lapsing of the credit
though the petitioners may equate the position before us with that of Eicher
Motors. We are dealing with the validity and legality of a condition imposed in the
transitional arrangement. While moving from one legislation to another compre-
hensive legislation, in the latter legislation the Legislature deemed it fit and proper
to continue the earlier or erstwhile arrangement by terming it as a transition or
transitional one. That continuation was with conditions and one of the conditions
which is questioned here is consistent with the conditions imposed under the exist-
ing law. Such a situation was not dealt with in Eicher Motors. Thus, the decision is
clearly distinguishable.
62. Reliance is then placed on another decision in the case of Jayam &
Company (supra). Once again we must see what was dealt with in Jayam &
Company. The argument before the Hon’ble Supreme Court in Jayam &
Company was whether sub-section (20) of Section 19 of the Tamil Nadu Val-
ue Added Tax Act, 2006 could be given retrospective effect. The appellants
were dealers and registered as such under the provisions of the above VAT
Act. They argued that they had dealt in electronic home appliances. They

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