M/S. Siemens Limited vs Union Of India Through The Jt. ...
2022 Latest Caselaw 8230 Bom

                                                      902-903-904-909-910-wp-986-19-wp-8334-19-wp-109-20-wp-2786-21.doc




varsha
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                               WRIT PETITION NO. 986 of 2019
                                          WITH
                           INTERIM APPLICATION NO. 3665 OF 2020
                                           IN
                              WRIT PETITION NO. 986 OF 2019

         Siemens Ltd                                        .....Petitioner
               V/s.
         Union of India through the Joint Secretary
         (Revenue) and Ors                                  .....Respondents
                                        -----------
         Mr. Vikram Nankani, Senior Advocate a/w Mr. Jitendra Motwani, Mr Nishant
         Shah i/b Economic Laws Practices Advocate for the Petitioner.
         Smt. S.D. Vyas, B-Panel Counsel, for the Respondent-State.
         Mr. Pradeep S. Jetly, Senior Advocate, a/w Mr. Jitendra Mishra, Mr D.B.
         Deshmukh, Ms Sangeeta Yadav, Mr Sham Walve for Respondents.
                                              -----------

                                              WITH
                                  WRIT PETITION NO. 8334 of 2019
                                              WITH
                                  WRIT PETITION NO. 4979 OF 2019
         Cummins India Limited                          .....Petitioner
               V/s.
         Union of India through the Joint Secretary
         (Revenue) and Ors                              .....Respondents
                                            -----------
         Mr. Jitendra Motwani a/w Ms. Virangana Wadhawan, Mr Neeraj Hande, Mr
         Nishant Shah i/b Economic Laws Practice for Petitioners Advocate for the

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                                                   902-903-904-909-910-wp-986-19-wp-8334-19-wp-109-20-wp-2786-21.doc




Petitioner.
Mr Pradeep S. Jetly, Senior Advocate, a/w Mr Jitendra Mishtra, Mr. D.B.
Deshmukh, Ms. Sangeeta Yadav, Mr Sham Walve for Respondents.
Smt. S.D. Vyas, B-Panel Counsel for the Respondent-State.

                                        WITH
                                WRIT PETITION NO. 9715 of 2022


Procter & Gamble Health Limited                                            .....Petitioner
      V/s.
Union of India through the Secretary
(Revenue) and Ors.                                                         .....Respondents

Mr Prasad Pranjape a/w Mr. Sanjeev Nair i/b Lumiere Law Partners for
Petitioners.
Mr Pradeep S. Jetly, Senior Advocate, a/w Mr. Jitendra Mishra, Mr. D.B.
Deshmukh, Ms Sangeeta Yadav, Mr Sham Walve and Ms Maya Mujumdar,
Advocate for the Respondents.
Smt S.D. Vyas, B-Panel Counsel for the Respondent-State.
                               -----------

                                  CORAM : K.R.SHRIRAM &
                                          GAURI GODSE, JJ.

                                  DATE :    23rd AUGUST, 2022.
P.C.

1. The present batch of Petitions have been filed in relation to the

procedural difficulties / objections raised with regard to distribution

and/or utilisation and/or eligibility of Input Service Distributor (ISD)

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credit of Service Tax/excise duty under Section 140 of the CGST Act

2017.

2. The common objection of Respondent in this batch of Petitions is that

ISD Credit cannot be transitioned directly into the Electronic Credit

Ledger (ECL) maintained under the GST Regime. In view of the

provisions of CGST Act, the ISD credit ought to have been distributed

by the said ISD to its different units/offices before 1.07.2017 and

thereafter the transferee unit/offices ought to have filed TRAN-1 to

transition the said credit distributed to it by ISD, into their respective

ECL.

3. It is Petitioners' case that Petitioners attempted distribution of credit

transitioned / reporting of the distributed credit by the ISD registration

to their units/offices. However, they were not able to distribute /

recognise and report the distribution, as there were procedural and

functional difficulties in relation to the GST forms and portal.

4. The Hon'ble Apex Court, to aid the assessees to overcome the

procedural / technical hurdles , by an order dated 22 nd July , 2022 in

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Petition(s) for Special Leave to Appeal(C) No(s).32709-32710 of 2018

and other matters in Union of India & Another Vs Filco Trade Centre

Pvt. Ltd. & Another1 directed the GST Network to open the common

portal to file/rectify TRAN-1 and TRAN-2 for a period of two months,

i.e., with effect from 1st September, 2022 to 31st October, 2022 to enable

the different private parties to avail Transitional Credit. The order reads

as under :-

"O R D E R

Permission to file Special Leave Petition(s) is allowed. Delay condoned.

Having heard learned Additional Solicitor General, learned counsel appearing for different States and learned counsel appearing for different private parties and having perused the record, we are of the view that it is just and proper to issue the following directions in these cases :

1. Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.

2. Considering the judgments of the High Courts on the then

1 2022 (7) TMI 1232

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prevailing peculiar circumstances, any aggrieved registered assessee is directed to file the relevant form or revise the already filed form irrespective of whether the taxpayer has filed writ petition before the High Court or whether the case of the taxpayer has been decided by Information Technology Grievance Redressal Committee (ITGRC).

3. GSTN has to ensure that there are no technical glitch during the said time.

4. The concerned officers are given 90 days thereafter to verify the veracity of the claim/transitional credit and pass appropriate orders thereon on merits after granting appropriate reasonable opportunity to the parties concerned.

5. Thereafter, the allowed Transitional credit is to be reflected in the Electronic Credit Ledger.

6. If required GST Council may also issue appropriate guidelines to the field formations in scrutinizing the claims.

The Special Leave Petitions are disposed of accordingly. Pending applications, if any, also stand disposed of."

5. We also intend to adopt the same approach. In the circumstances,

directions given below would meet the ends of justice:

(a) All Petitioners, through their respective units/offices registered

under CGST Act and/or State Acts, as the case may be, can avail

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this window and file GST TRAN-1/revised GST TRAN-1 at the

units/offices between 01.09.2022 to 31.10.2022 in terms of the

Hon'ble Supreme Court's order in Filco Trade (Supra)

(b) The GST TRAN-1/ revised GST TRAN-1 filed by the

units/offices will be basis the manual ISD invoices issued / to be

issued by ISD of Petitioner subject to aggregate credit not

exceeding the ISD credit available with the ISD Petitioner

(c) The Central Board of Indirect Taxes and Customs (CBIC),

keeping in mind the problems faced by various parties, to issue a

clarification, after due deliberation, in relation to the

distribution / reporting of ISD credit preferably within 21 days

from the date this is Order is uploaded, keeping in mind the

approach adopted by the Hon'ble Supreme Court of India in Filco

Trade (Supra). Petitioners, may, if so advised, approach the

CBIC in this regard.

(d) The concerned officers are given 90 days thereafter to verify the

veracity of the claim/ Transitional Credit and pass appropriate

orders thereon on merits after granting appropriate reasonable

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opportunity to the parties concerned.

6. With the consent of the Counsels, Petitions are accordingly disposed.

[GAURI GODSE, J.]                                           [K.R.SHRIRAM, J.]