M/S. Mahavir Auto Diagnostics Private Limited vs. Additional Commissioner Of Central Tax

ADDITIONAL COMMISSIONER OF CENTRAL TAX, (GST- APPEALS), D. NO. 3-30-15, RING ROAD, GUNTUR- 522006 5.CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GST POLICY WING, NEW DELHI REP BY ITS COMMISSIONER 6.UNION OF INDIA, MINISTRY OF FINANCE, REPRESENTED BY ITS SECRETARY, NORTH BLOCK, NEW DELHI-110001 ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toPleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus A. declaring impugned Order-in-Original vide ref. no. 11/2023-24 GST-AC (SS)-2-23-24 dated 25.09.2023 passed by 4 RRR, J & JS, J- W.P.Nos.14494 & 14496 of 2024 the Respondent No. 1 and consequent Arrears Notice dated 12.06.2024 issued by Respondent No. 3 under the provisions of COST Act, 2017 being void, arbitrary, illegal, without juri iction, violative of the principles of natural justice apart from being violative of Articles 14. the Constitution of India, and 'to as Vx 19(1)(g) and 265 of consequently set aside the same and such further or other order(s) as this Honble Court may deem fit and the circumstances of the pass proper in case, declaring that the Circular No. 180/12/2022- GST dated 09,09.2022 issued by Respondent No. 5 restricting the aggrieved assesses to file revise forms where adjudicafion/appeai proceedings is pending is without authority of law and ultra vires to Section 140 of GST Act 2017 and Honble Supreme Court order in the case of Union of India vs M/s’ Filco Trade Centre Pvt. Ltd., SLP(C) No. 32709-32710/2018 22.07.2022 AND 02.09.2022 reported vide 2022 (63) GSTL 2022 (64) GSTL 385 (SC) besides being violative of articles 141 and 265 of the Constitution of India and/or order dated 162 (SC) and 14,19(1)(g)21, pas lA NO: 1 OF 2024 Petition under Section 151 CPC . ,, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to stay operation of impugned Order-in- Original vide ref. no. vide ref. no. 11/2023-24 GST-AC (SS)-2-23-24 dated 25.09.2023 passed by the Respondent No. 1 and consequent Arrears Notice dated 12 06 2024 issued by Respondent No. 3 and pass lA NO: 1 OF 2025 Petition under Section 151 CPC . praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant leave for filing rejoinder in the Writ Petition No. 14496 of 2024 and pass Counsel for the Petitioner: 1.PASUPULETI VENKATA PRASAD Counsel for the Respondent(S): 1.PSPSURESH KUMAR W.P. Nos. 14494 & 14496 of 2024 i r The Court made the following common order: (per Hon’ble Sri Justice R. Raghunandan Rao) As both these Writ Petitions arise out of the orders passed against an unregistered person, they are being disposed of, by way of this common order. The petitioner, who was earlier registered under the Andhra

Pradesh Value Added Tax Act, 2005, had migrated to the GST regime with effect from 01.07.2017. The petitioner, as on the appointed date, i.e., 01.07.2017, had paid excise duty on the stock available with him and sought transition of this excise duty to the GST regime. Under the transitory provisions of Section 143, any registered person, who sought transition of any credit available to him under the relevant tax laws, was required to file Tran-1 Form and Tran-3 Form for obtaining transition of the said credit to the GST regime. It appears that the petitioner had filed Tran-1 Form but has not uploaded the Tran-3 Form. On account of this inability to upload Tran-3 Form, the 3'^'^ respondent issued a show-cause notice, dated 14.01.2020, contending that there was irregular transitional credit and the same needs to be reversed with interest and penalty. The petitioner replied to this show-cause notice, on 28.07.2022, contending that the Tran-3 Form could not be uploaded due to technical glitches and the same cannot be held against the petitioner. However, the 3'^'^ respondent passed an 3. W.P.Nos.14494 & 14496 of 2024 ' order, dated 10.02.2023, reversing the transitional credit which had been availed by the petitioner. While matters stood thus, various other registered persons, who were facing similar difficulties, had been approaching the Courts. These litigations culminated in the order of the Hon’ble Supreme Court in the case of Union of India vs. M/s. Filco Trade Centre Pvt. Ltd.,\ The Hon’ble

Supreme Court, after considering the submissions made by both sides, had issued directions that the portal would be opened again with effect from 01.09.2022 to 31.10.2022, to permit persons, who could not file necessary Forms earlier, to be allowed to file Tran-1 and Tran-2 Forms in this period.

The petitioner availed of this opportunity and filed Tran-3 Form on 29.11.2022. This was permissible in as much as the initial order of the Hon’ble Supreme Court, directing reopening of the portal upto 31.10.2022 was extended upto 30.11.2022. rd The Superintendent of Central Tax, who is arrayed as 3 respondent in W.P.No.14496 of 2024, had rejected the forms of the petitioner, filed on 29.11.2022, by way of an order, dated 10.02.2023. The 3^^ respondent in W.P.No. 14496 of 2024, relying upon circular No.180/12/2022-G ST, dated 09.09.2022, had held that Tran Forms cannot be accepted where adjudication relating to the eligibility of the transitional credit is before the appropriate 6. ' imiXes) GSTL 162 (SC)

Commissioner affirmed the view taken by the Superintendent.

Aggrieved by the order of rejection, dated 10.02.2023 and the Order-in-Appeal, dated 30.11.2023, the petitioner has approached this Court by way of the present Writ Petitions.

Heard Sri P. Venkata Prasad, learned counsel for the petitioner and Sri P.S.P. Suresh Kumar, learned counsel for the respondents.

There is no dispute that the petitioner would have been entitled to file fresh Tran Forms through the window of 01.09.2022 to 30.11.2022. Infact, the petitioner had availed of such opportunity and filed necessary Tran Forms. However, the respondents took the view that it was not permissible for the petitioner to file such Tran Forms, in view of the circular No.180/12/2022-GST, dated 09.09.2022. 11. The circular sets out the guidelines by which the directions of the Hon’ble Supreme Court in the case of Union of India vs M/s. Filco Trade Centre Pvt. Ltd were to be implemented. Guideline No.4.7 reads as follows:

In the present case, the view of the respondents was that since the Tran Forms, filed by the petitioner, had been subjected to adjudication, which had not yet been concluded by the time the window period had ended, the petitioner would not be entitled to file any fresh Tran Forms.

This view of the respondents does not appear to be correct. Guideline No.4.7, set out above, relates to a situation where the eligibility of a person to avail of credit itself is in question, i.e., where there is any dispute as to whether the credit sought to be transitioned to the GST regime was itself available or not. In the present case, there is no dispute, even according to the impugned orders, that the credit sought to be transitioned by the petitioner was available under the Excise Act. The only issue which was subjected to adjudication in the first round was the question of whether credit could be transitioned without filing of Tran-3 Form. This adjudication is not covered in guideline No.4.7. \ \

In the circumstances, the Order-in-Original, dated 25.09.2023, passed by the Assistant Commissioner, which is the impugned order in W.P.No.14496 of 2024, and the Order-in-Appeal, bearing No.VIZ-GST-000- APP-053-23-24, dated 30.11.2023, passed by the 1 W.P.No. 14494 of 2024 are set aside and the respondents are directed to allow the petitioner to avail of the credit available under the Excise Act, by permitting the transition of the credit to the GST regime. respondent in W. P. Nos. 14494 & 14496 of 2024

In the circumstances, demands if any raised, on account of rejection of the transition credit, shall stand quashed. There shall be \ no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed. U. SRIDEVI ASSISTANT REGISTRAR ! //// sept&iofficer To,