Page 93 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] BRAND EQUITY TREATIES LTD. v. UNION OF INDIA 11
tion in GST TRAN-1 - Artificial construction of “technical difficulties”, limit-
ing it to those existing on common portal creating unfair distinction and re-
strict it to technical snags alone - Taxpayers cannot be robbed of valuable
rights on unreasonable and unfounded basis of them not having filed GST
TRAN-1 Form within 90 days, when civil rights can be enforced within period
of three years from date of commencement of limitation under Limitation Act,
1963 - Time-limit prescribed for availing input tax credit with respect to pur-
chase of goods and services made in the pre-GST regime, cannot be discrimi-
natory and unreasonable - Cenvat credit which stood accrued and vested was
property of assessee and constitutional right - Same cannot be taken away
merely by way of delegated legislation by framing rules, without there being
any overarching provision in Act - Rule 117 ibid, whereby mechanism for
availing credits been prescribed, is procedural and directory, and cannot affect
substantive right of registered taxpayer to avail of existing/accrued and vested
Cenvat credit - Procedure could not run contrary to substantive right vested
under sub-section (1) of Section 140 of Central Goods and Services Tax Act,
2017 - In absence of any consequence being provided under Section 140 ibid to
delayed filing of Form TRAN-1, Rule 117 ibid to be read and understood as
directory and not mandatory - Rule 117 as being directory in nature, insofar as
it prescribes the time-limit for transitioning of credit - And not result in forfei-
ture of the rights, in case the credit not availed within period prescribed -
However, it cannot be taken in perpetuity - In terms of residuary provisions of
Limitation Act, 1963, period of three years should be guiding principle and
thus a period of three years from appointed date would be maximum period
for availing of such credit - On facts since all Petitioners filed or attempted to
file Form TRAN-1 within aforesaid period of three years they shall be entitled
to avail ITC accruing to them - Direction to Authorities to publicise this judg-
ment widely including by way of publishing same on their website so that
others who may not have been able to file TRAN-1 till date are permitted to do
so on or before 30-6-2020 - Articles 14 and 300A of Constitution of India. -
GSTN network, indeed, is riddled with shortcomings and inadequacies. This is palpably
evident from the sheer number of cases being presented before us, in relation to such
technical difficulties and inadequacies. The benchmark, in our view, is that the online
system brought into force by the GSTN Ltd. should be able to perform all functions and
should have all flexibilities/options, which were available in the pre-GST regime. The
problems on the GSTN cannot be wished away, and have to be resolved in the right ear-
nest. This requires sensitivity on the part of the Government which has, unfortunately,
not been exhibited in adequate measure. Initially, the time limit prescribed under Rule
117 for transitioning was 90 days was extended from time to time. Evidently, there is no
other provision in the Act prescribing time limit for the transition of the Cenvat credit,
and the same has been introduced only by way of Rule 117. This provision also contains a
proviso, which vests power with the Commissioner to extend the period on the recom-
mendations of the Council. Indeed, the Commissioner has exercised such power and time
period which was initially to expire after 90 days, has been, as a matter of fact, extended
till 29th December, 2017. In fact, as noticed above, under sub-rule (1A) of Rule 117, for a
specific class of persons, the time-limit has gone way beyond the period originally envis-
aged, and has still not expired. Thus, there is nothing sacrosanct about the time-limit so
provided. It is not as if the Act completely restricts the transition of Cenvat credit in the
GST regime by a particular date, and there is no rationale for curtailing the said period,
except under the law of limitations. The period of 90 days has no rationale and extensions
have been granted by the Government from time to time, largely on account of its ineffi-
GST LAW TIMES  2nd July 2020  93