Page 105 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] BRAND EQUITY TREATIES LTD. v. UNION OF INDIA 23
served some evidence of it - such as, by taking a screen shot. Many of the
registered dealers/traders come from rural/semiliterate background. They
may not have had the presence of mind to create any record of their having
tried, and failed, to upload the Form GST TRAN-1. They cannot be made to
suffer in this background, particularly, when the systems of the Respond-
ents were not efficient. From the documents placed on record, it emanates
that the Respondents have no cogent ground to deny the benefit of the No-
tification No. 49/2019, dated 9-10-2019 issued specifically to grant relief to
taxpayers who faced difficulty in filing Form GST TRAN-1 due to technical
glitches.
8. We may further add that the credit standing in favour of an assessee is
“property” and the assessee could not be deprived of the said property save
by authority of law in terms of Article 300(A) of the Constitution of India.
There is no law brought to our notice which extinguishes the said right to
property of the assessee in the credit standing in their favour.
9. Thus, we allow the present petition and direct the respondents to either
open the online portal so as to enable the petitioner to file the Form TRAN-
1 electronically, or to accept the same manually on or before 31-12-2019. Re-
spondents shall process the petitioner’s claim in accordance with law once
the Form GST TRAN-1 is filed. The petition is allowed in the aforesaid
terms.”
17. The above decision would also cover the case of the Petitioners, and
there can be no two views about this proposition and we would like to extend
similar benefit to them. Nevertheless, let’s delve into the more fundamental
question - Whether the Government could curtail the accrued and vested right,
and restrict it to 90 days by a subordinate legislation? To answer this vexed que-
ry, let’s first examine the legal provisions. Sub-section (1) of Section 140 which
deals with the transitory provision, permits carry forward of the Cenvat credit.
This presupposes that the amount of Cenvat credit of eligible duties has therefore
accrued and is existing and reflected in the Cenvat credit register. Sub-section (1)
of Section 140 enables a registered person to carry forward such credit in the re-
turn relating to the period ending with the day (30th June, 2017) immediately
preceding the appointed date which is 1st July, 2017 furnished by him under the
existing law. The provisions of the Service Tax under Chapter V of the Finance
Act stood repealed by virtue of the GST legislation as provided under Section 174
of the CGST Act. Thus, on the appointed date, the credits which existed under
the previous regime were required to be transitioned to the new regime. This
credit in every sense stood accumulated, acquired and vested on the appointed
date as it was reflected in the said Cenvat credit register in the previous regime.
On enactment of the CGST Act, no mechanism was provided for the refund of
the credit that existed on the said date. The only mechanism was for utilization of
such credit by migrating the same to the GST regime by way of filing declaration
Form TRAN-1. The manner and procedure to carry forward the said Cenvat
credit under sub-section (1) of Section 140 was to be ‘prescribed’. The word ‘pre-
scribed’ has also been defined under Section 2(87) to mean “prescribed by Rules
made under this act on the recommendation of the Council”. This brings us to Rule 117
of CGST Rules, the relevant provision prescribing the manner in which the Cen-
vat credit has to be transitioned. Initially, the time-limit prescribed under Rule
117 for transitioning was 90 days, as explained above, was extended from time to
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