CONFISCATION OF CONVEYANCE., Goods and Services Tax - GST

[Sadanand Bulbule]

Confiscation of goods or conveyances and levy of penalty.

The provision reads as under:

Section 130. (1) Notwithstanding anything contained in this Act, if any person-

(v) uses any conveyance as a means of transport for carriage of goods in contravention of the provisions of this Act or the rules made thereunder unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance,

then, all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122.

Query.

The legal position being so, how the owner of the conveyance detained can prove that his conveyance was used without his knowledge for the clandestine transportation of taxable goods. In other words, how the owner of the conveyance detained by the proper officer can prove that there is no his willful involvement in facilitating the transportation of taxable goods under fake documents?

Pl enlighten.

Posts / Replies

[Alkesh Jani]

Sir,

This can be done by way of filing affidavit before the proper authority.

Thanks,

With regards

[Sadanand Bulbule]

Thank you so much Sir.

[Rajagopalan Ranganathan]

Sir,

The customer who hires the vehicle for transporting the goods will generate e-way bill which will indicate the value of the goods and document, namely invoice, which will accompany the goods a perusal of E-way bill will indicate the tax paid nature of goods transported. Hence, in my opinion, the owner of the vehicle cannot plead his ignorance whether proper tax is paid on the goods transported.

[Sadanand Bulbule]

Thank you so much Sir.

[KASTURI SETHI]

Only affidavit will not click. First of all intention must be clear. De facto, there is no escape route for owner of vehicle. Better option is to be pro-active. The statement of driver of the vehicle is vital. Cannot be ignored.

[Sadanand Bulbule]

Very true Sir.

[Ganeshan Kalyani]

Intention is like a kernel of the coconut which can only be seen when the nut is broken. It is not that easy to bring out the intention of a person. Winning the heart can win the situation. Mind accepts the acceptance of heart. In your case convince the authority. There are still good people in the world ready to help and solve problem. Try it.

[Sadanand Bulbule]

Sure Sir.

[KASTURI SETHI]

In Customs, the burden of proof is cast upon the accused/noticee to prove that he/she is innocent. In Central Excise, Service Tax and now GST, the situation is reverse. The burden of proof is cast upon the department to establish that the Noticee has evaded CE duty, Service Tax and GST. (Except Cenvat Credit/ITC availment Section 155 of CGST Act.) In pre-GST era also, the person who availed Cenvat Credit was required to prove that Cenvat Credit was taken correctly.

[Alkesh Jani]

Dear Experts,

I am grateful for such a good deliberation, In this regards I invite your attention to the query raised “how the owner of the conveyance detained can prove that his conveyance was used without his knowledge for the clandestine transportation of taxable goods.” The reply was for this purpose as, the owner may not be able to produce any documentary proof to prove his innocence therefore, affidavit which valid legal document accepted by courts was suggested in the matter. Merely because one person is the owner of conveyance, should be held guilty, although involved or not.

There can be various other aspects, as suggested by Sh. Kasturiji sir the statement of driver, here it is also to ascertain that drive is co-accused, if so, his statement is not valid. There can be various scenario and is requires different applications. There were settled law in pre-GST, like Director cannot be penalized if penalty is imposed on the company, but it may take some sort of time in GST as the wording used in erstwhile law and in GST are similar or not and applicability of ratio are to be settled by courts.

Thanks,

With regards

[KASTURI SETHI]

Sh.Alkesh Jani's reply is full of practical, legal and logical force as well as approach. Thus if the two or three minds share their knowledge on one/same issue, the querist is benefitted to the maximum. Thanks to Sh.Alkesh Janice Ji for such quick, clear, correct and concrete response.

[Alkesh Jani]

Dear Kasturiji Sir,

Infact you deserve Thanks for providing your insight and also to other professional and armatures. I believe that learning is also an ART, which I am trying to learn from you as well as other experts contributing in this forum.

With Due Regards

[Alkesh Jani]

Please read "ameture" for "armatures"

[Ganeshan Kalyani]

Change is certain. For survival learning is essential. If you stop peddling a bicycle you will fell. In taxation the same logic applies. One has to constantly keep on reading. Evey blink of an eye new changes floods in. Thanks to TMI for giving such a nice platform where experts comes together to share their hard earned experiences with the readers. One gets different views on a issue from learned experts.

[KASTURI SETHI]

Dear Sh.Alkesh Jani Ji,

I am indebted to you for your expression of your observations/compliments. Virtually, we reinforce each other by sharing our knowledge and experience in this forum.It is a tested fact that today's youngsters are mentally sharper than that of ours' era. That is why India is progressing scientifically and technologically at a faster pace and has come to the level of USA, Japan, Germany, Russia etc. but lagging behind morally. Moral values are at its lowest ebb. What we studied in M.A. is being taught in B.A. Part-I. It is applicable to Science and Commerce also.

What I mean to say I also learn a lot from you.