Stay order on entitlement to carry forward and set off of unutilised Education Cess, Secondary and Higher Education Cess and Krishi kalyan Cess against the GST Output Liability with reference to Section 140 of the CGST Act, 2017.
Section 140 of CGST Act, 2017 — Transitional Credit- Credit of Cesses – The appellant Revenue submitted that after the deletion of the Education Cess (EC) and Secondary and Higher Education Cess (SHEC) with effect from 01.03.2015 and 01.06.2015 respectively by the Finance Acts, the Assessee could not claim any ITC with respect to such Cess paid by it against the GST liability. The appellant challenged the order of the Single Judge, who allowed the writ petition filed by the Assessee against the communication dated 14.02.2018. The appellant submitted that the Delhi High Court, in the case of “Cellular Operators Association of India -Vs- Union of India (MANU/DE/0710/2018)” has held in favour of the Revenue that such credit could not be allowed. The respondent submitted that in the case of “Eicher Motors Limited -Vs- Union of India, the Supreme court dealing with the provisions of Rule 57F(4A) of the Central Excise Rules 1944 regarding MODVAT Credit, has allowed such credit on the ground that there were no specific lapsing provisions enacted by the State. The writ petition was filed by the respondent Assessee against the communication dated 14.02.2018, asking him to reverse the amount of Rs. 1,03,08,706/- as the provisions of Section 140 of Act read with Rule 117 of CGST Rules does not cover the Cesses.
Held that:- The Hon’ble High Court stayed the operation of the order of the learned Single Judge and posted the matter after six weeks.