Page 142 - GSTL_18th June 2020_Vol 37_Part 3

356 GST LAW TIMES [ Vol. 37
arose attracting the provisions of existing law, it can be claimed subject to ful-
fillment of the procedure/conditions stipulated under such provisions of existing
law. Therefore, the claim filed by the appellant even after introduction of GST
was a routine and valid step for which no one can prevent them. On receipt of
refund application, it becomes the function of the competent authority to scruti-
nize its legality and either sanction or reject the same applying the provisions
under which it is claimed. I observe that in the instant case, when the appellant
himself has preferred the claim under Rule 5 of Cenvat Credit Rules, 2004, decid-
ing of the claim under CGST Act/Rules was not permissible, more particularly
when transitional provisions i.e. Section 42(3) makes if mandatory on the author-
ity to dispose such claim in accordance with the provisions of existing law. I
therefore, find that Rule 117 of CGST Rules, 2017 applied in processing/deciding
the claim by the impugned authority is faulty.
6.2 The appellant has forcefully argued that their claim of accumulated
input tax credit filed under Rule 5 of Cenvat Credit Rules, 2004 required to be
processed/disposed of in accordance with the provisions of Central Excise, law
read with Cenvat Credit Rules, 2004 and not under GST law even though the
same is filed after the appointed day. In view of the above observations, I find
force in such plea of the appellant. It is also observed that since the claim has not
been processed in accordance with the provisions claimed/meant for, it first
needs scrutiny applying Rule 5 of Cenvat Credit Rules, 2004 & notification supra
under Central Excise law and to arrive at appropriate decision. Therefore, in the
interest of justice, it would be just and proper to remit the matter to adjudicating
authority to scrutinize the claim in accordance with the provisions of Central Ex-
cise law read with Cenvat Credit Rules, 2004.
7. I further find that the impugned order at para 10 observes that “on
going through the documents furnished by the claimant, I find that the said claimant has
not fulfilled the conditions as laid down in Rule 117 of Central Goods and Service Tax
Rules, 2017 as the Taxpayer has not filed the TRAN-1 within stipulated time which is
mandatory”. However, it is observed that that Rule 117 of Central Goods and Ser-
vices Tax Rules, 2017 was amended by inserting the following vide Notification
No. 48/2018-Central Tax, dated 10-9-2018
(i) in rule 117,
(a) after sub-rule (1), the following sub-rule shall be inserted,
namely :-
“(1A) Notwithstanding anything contained in sub-rule (1), the
Commissioner may, on the recommendations of the Council,
extend the dale for submitting the declaration electronically in
FORM GST TRAN-1 by a further period not beyond 31st March,
2019, in respect of registered persons who could not submit the
said declaration by the due date on account of technical difficul-
ties on the common portal and in respect of whom the Council
has made a recommendation for such extension.”
7.1 As provided above, the date of filing of TRAN-1 was extended upto
31st March, 2019 and therefore, the finding of the adjudicating authority that the
appellant has not filed TRAN-1 within stipulated time, is not correct as the im-
pugned order has been passed well before expiry of stipulated time limit i.e. 31st
March, 2019.
8. It would also be relevant to mention here the second proviso to Sec-
tion 142(3) of CGST Act, 2017 which says :

GST LAW TIMES  18th June 2020  142