G.G.

GUPTA & Associates

Advocates & Tax Consultants (GST & Custom)

Office :- KD-94,Vishakha Enclave, Pitampura, New Delhi-34

Mobile No 8459466042

OP I N I O N

This Opinion has been sought by M/s Salwan Papers Private Limited,907/219,
2nd Floor, Maharaja Agarsain Market, Chhota Chhipiwara, Chawri Bazar,
Delhi-110006, who are registered with GST and have already availed Transitional
Credit by filing TRAN-1 on the following issue.

Query :-

we are importer of various type of stock lot of Paper & having Duty paid stock

at time of GST Regime Started . We have claimed Additional Custom Duty

(SAD- 4%) CVD 6% & Service Tax paid on the Clearing Agent Bill as

Transitional Credit . Please advise us eligibility of Claiming the Input in

transitional Stock .
(3) A registered person, who was not liable to be registered under the existing law,

or who was engaged in the manufacture of exempted goods or provision of exempted

services ,or who was providing works contract service and was availing of the

benefit of notification No. 26/2012—Service Tax, dated the 20th June, 2012 or a first

stage dealer or a second stage dealer or a registered importer or a depot of a

manufacturer, shall be entitled to take, in his electronic credit ledger, credit of

eligible duties in respect of inputs held in stock and inputs contained in semi-finished

or finished goods held in stock on the appointed day subject to the following

conditions, namely:––

(i) such inputs or goods are used or intended to be used for making taxable

supplies under this Act;

(ii) the said registered person is eligible for input tax credit on such inputs under

this Act;

(iii) the said registered person is in possession of invoice or other prescribed

documents evidencing payment of duty under the existing law in respect of such

inputs;

(iv) such invoices or other prescribed documents were issued not earlier than

twelve months immediately preceding the appointed day; and

(v) the supplier of services is not eligible for any abatement under this Act:
(5) A registered person shall be entitled to take, in his electronic credit ledger,

credit of eligible duties and taxes in respect of inputs or input services received on

or after the appointed day but the duty or tax in respect of which has been paid by

the supplier under the existing law, subject to the condition that the invoice or any

other duty or tax paying document of the same was recorded in the books of

accounts of such person within a period of thirty days from the appointed day:

Provided that the period of thirty days may, on sufficient cause being shown, be

extended by the Commissioner for a further period not exceeding thirty days:

Provided further that said registered person shall furnish a statement, in such

manner as may be prescribed, in respect of credit that has been taken under this sub-

section.

In this regard, it has been observed that Querist has correctly availed transitional

credit of input on which CVD + Additional Duty was paid on import against Bill of

Entry and input services bills on which service tax was paid by service providers

under Service Tax law and bills were booked by Querist within 30 days of appointed

day under Section 140(5) of CGST Act, 2017.

The credit is eligible to Querist and has been correctly availed. Further, there has

been no contravention of Section 140(5) of the CGST Act, 2017 in availing the
transitional credit. If any other interpretation is done this provision itself will become

otiose which is not the intention of legislature.

Supreme Court in the case of CIT v. Distributors (Baroda) (P) Ltd. (1972)

83 ITR 377 (SC), it was contended- "No part of a provision of a statute can

be just ignored by saying that the legislature enacted it not knowing what it

was saying." Relying upon the decision of the Supreme Court in the case of

CWT v. Kripashankar Dayashanker Worah (1971) 81 ITR 763 (SC), it was

contended that if the intention of the legislature is clear and beyond doubt,

then the fact that the provision could have been more artistically drafted

cannot be a ground for treating any part of a provision as otiose.

Transitional credit of service tax bills booked in July 2017 has been availed by every

GST Registered person. Your query is covered under Section 140(5) of CGST Act,

2017. Your input tax credit of service tax can not be deny under Section 140(5) of

CGST Act, 2017 on or before whose bills has been booked in your books within 30

days of appointed day ( i.e 30th July 2017)

Conclusion:

In view of foregoing; it is opined that the Querist is legally entitled to avail Credit

of CVD & SAD paid on imported goods and credit of service tax bills raised by

service providers such as CHA whose bills have been booked within 30 days of
appointed day( i.e. 30th July 2017) under provisions of Section 140(5) of CGST Act,

2017.

Regards,

G.G.Gupta, Advocate based in Delhi and NCR is advising several MNC, Joint
Ventures, PSUs & Indian Corporates on GST, Custom, DGFT & Foreign Trade
Matters.He can be mailed at gggupta12@gmail.com, Contract No 8459466042