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2019 Supreme(HP) 1976
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Chander Bhusan Barowalia, JJ.
M/S JAY BEE INDUSTRIES — Appellant
Vs.
UNION OF INDIA AND OTHERS — Respondents
CWP No. 2169 of 2018
Decided On : 16-11-2019
Advocate Appeared:
For the Appellants : Mr. Surinder Saklani, Mr. Ajayjain.
For the Respondents: Mr. Shashi Shirshoo, Mr. Ajay Vaidya, Mr. Vinod Thakur, Mr. Bhupinder Thakur, Mr. Ram Lal Thakur, Mr. Rajiv Jiwan, Mr. Ajit Sharma.
Headnote:
Constitution of India, 1950 - Article 226 - Goods and Service Tax Act - Central Goods and Service Tax Rules, 2017 - Rule 117 – Manufacture and sale/supply of Electrical Transformers/parts - Levies of goods and service tax - Input credit - Seeking direction to respondents to re-open the common portal and allow petitioner to file Tran-1 form so as to avail and utilize input credit in respect of duties/taxes paid on inputs held in stock and contained in semi-finished and finished goods and not to charge interest from petitioner to extent of that amount so as to prevent miscarriage of justice - Held, The issue is about technical glitch in system which either does not permit a rectification in a situation where a dealer may have, due to inadvertence, or a bona-fide error, not correctly filled up a form or where system, due to a limitation in algorithm/software programme, did not accept entries sought to be made by dealer - Respondents have not been able to persuade us to take a view other than the one taken by Madras, Delhi, Punjab and Haryana High Courts and, therefore, court are in an agreement with view taken by these High Courts wherein they have permitted the petitioner(s) before them to file TRAN-1 Forms even after 27.12.2017 - A majority of High Courts of Country, referred to above, have taken a judicial notice of technical glitch in uploading Form TRAN-1 and afforded opportunities to petitioner(s) before them for uploading these Forms by approaching Nodal Officers and some of the High Courts have also permitted petitioner(s) to tender these forms manually - Writ petition is allowed.
JUDGMENT :
Tarlok Singh Chauhan, J.
1. The present petition filed by the petitioner under Article 226 of the Constitution of India seeks the following reliefs:
"a. To issue a writ of mandamus or other appropriate writ, order or direction to respondents to re-open the common portal and allow the petitioner to file the Tran-1 form so as to avail and utilize the input credit in respect of duties/taxes paid on the inputs held in stock and contained in semi-finished and finished goods as on 30-06-2017 and not to charge interest from the petitioner to the extent of that amount so as to prevent the miscarriage of justice;
b. In case the respondents are unable to do so, they be directed to entertain Tran-1 From of the petitioner manually/physically with supporting records;
c. To hold that the petitioner shall not be treated as in default in compliance;
d. To ensure that the petitioner is allowed to pay its taxes on regular electronic system after utilization of the input tax credit."
2. The petitioner is engaged in the manufacture and sale/supply of Electrical Transformers/parts thereof etc. holding GST NO.02AACFJ9239Q2ZW. The petitioner has been subjected to appropriate levies of goods and service tax on the supplies made by it. The petitioner is also entitled to credit of input tax on the inputs as well as capital goods and input services. The input credit is also admissible in respect of the duty/tax paid on the inputs lying as such and those contained in the semi-finished goods and finished goods lying in stocks as on 30.06.2017 for being carried forward and utilized under the GST Act.
3. The Goods and Service Tax (in short 'GST') has been introduced with effect from 01.07.2017 which has resulted into subsuming of large number of Central and State levies into a single tax. Various taxes like Central Excise Duty, Additional Duties, Special Duties, Service Tax, Cesses, Surcharge and State VAT, CST, Purchase Tax etc. have been merged into single tax i.e. GST which has been implemented with effect from 01.07.2017.
4. Prior to introduction of GST, the petitioner was registered with the Central Excise/Service Tax as well as Sales Tax Department and was paying appropriate duties/taxes. With the introduction of the GST with effect from 01.07.2017 and subsuming of various taxes into GST, the petitioner was made to migrate into GST and was allotted GST NO.02AACFJ9239Q2ZW and the petitioner has held various stocks of duty/tax paid raw materials as well as those contained in the semi-finished goods and finished goods. It is the case of the petitioner that in terms of the provisions of Section 140(3) of the Central Goods and Service Tax Act, 2017, a registered person is entitled to take credit of eligible duties in respect of inputs held in stock as well as those contained in the semi-finished goods & finished goods. Rule 117 of the Central Goods and Service Tax Rules, 2017, provides that every registered person entitled to take credit of input tax credit under Section 140 shall submit a declaration electronically in Form TRAN-1 on the common portal specifying therein, the amount of input tax credit.
5. Even though, the GST had been implemented with effect from 01.07.2017, however, the electronic system/common portal was not available/accessible for operation. Only few services like registration, migration were made available on the portal. Neither the GST Returns monthly/quarterly were available nor the Forms including the TRAN-1 Forms were made available, resulting in lot of administrative and practical problems, both for taxpayers and for the revenue. The respondents deferred the dates at regular intervals for furnishing of Returns/Forms by extending the dates, but the system could not be set right by them and could not be made use of by the taxpayers to file returns and to comply with various procedural requirements.
6. Due to the defects in the system/glitches on the portal, the petitioner was unable to fill up the TRAN-1 Form and furnish the detail
