Page 38 - GSTL_2nd July 2020 _Vol 38_Part 1

J12 GST LAW TIMES [ Vol. 38

ITC ON CENVAT CREDIT NOT MEN-
TIONED IN THE FINAL CENTRAL EXCISE
RETURN
ITC ON CENVAT CREDIT NOT MENTIONED IN THE FINAL CENTRAL EXCISE
By
Rushik Desai, B.Com. (Hons.), M.Com., PGDTP, LL.B.
PRINCIPAL - LINDE ENGINEERING INDIA PRIVATE LIMITED

Goods and Services Tax (GST) regime was intro-
duced w.e.f. 1st July, 2017 and erstwhile Central Excise
and Service Tax regime was subsumed under the GST.
With its introduction it became necessary to make provisions for switch-
ing over from the old to the new regime, which in legal parlance, often times, is
referred to as transitional provisions. Such transitional provisions are contained
in Chapter XX of CGST Act, 2017 (hereinafter referred to as the “said Act”).
Sub-section (1) of Section 140 of the said Act, permits transfer of Cenvat
credit of eligible duties carried forward in the return relating to the period end-
ing with the day immediately preceding the appointed day. A question arises as
to whether the right of availing Cenvat credit, which was accrued to assessee in
the pre-GST regime extinguished, merely because such credit was not reflected
in the return filed under pre-GST regime on 30-6-2017.
Sub-section (5) of Section 140 of the said Act, permits to take credit of el-
igible duties and taxes in respect of inputs or input services received on or after
the appointed day but the duty or tax in respect of which has been paid by the
supplier under the existing law, subject to the condition that the invoice or any
other duty or tax paying document of the same was recorded in the books of ac-
count within a period of thirty days from the appointed day.
In terms of Rule 117 of CGST Rules, 2017, if a registered person intends
to claim transitional credit, a declaration in Form GST TRAN-1 was required to
be filed within 90 days of the appointed day i.e. by 28-9-2017. In terms of transi-
tional provisions, closing balance of credit of taxes lying and shown in last return
filed by the assessee prior to introduction of GST was to be carried forward as
credit in Electronic Credit Ledger. Accordingly, all assessee filed Form GST
TRAN-1 on or before the due dates or the date extended time to time and trans-
ferred their balances of Cenvat credit.
At the material time there could be some invoices under which in-
put/input services were procured during the existing law, but Cenvat credit of
duties did not get incorporated in the return filed for the month of June, 2017.
However, the amount of such left out credit was claimed through Form GST
TRAN-1 filed within the stipulated time, which was months after GST laws came
into force. The Cenvat credit on such input/input services otherwise was indis-
putably eligible as per Cenvat Credit Rules, 2004. Such invoices are being denied
the facility of carrying forward the credit entitlement into GST regime. The deni-
al, it is argued here, is illegal.
In the above context, reference can be made to catena of decisions includ-
ing the most recent decision delivered by the Hon’ble High Court of Delhi in case

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