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TMI Blog2020 (2) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... h purpose; [C] During the admission, hearing and final disposal of the present petition, be pleased to grant an interim relief directing the respondent no.3 to release the goods with truck No.GJ-01-AT-1961 detained/ seized in purported exercise of powers u/s 129 and 130 of the GST Act; [D] Pass any other order(s) as this Hon'ble Court may deem fir and more appropriate in order to grant interim relief to the Petitioner; [E] Any other and further relief deemed just and proper be granted in the interest of justice; [F] To provide for the cost of this petition." 2. We take note of the order, passed by a coordinate Bench of this Court, dated 25th July, 2019, which reads thus: "1. Rule returnable on 7th August, 2019. Ms. Maithili D. Mehta, the learned AGP waives service of notice of rule for and on behalf of the respondents. 2. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs : "a. A writ of mandamus, or any other appropriate writ, order and/or direction in the nature of mandamus to quash and setting aside the notice issued by the respondent no.3 for confiscation of goods an conveyances and lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case on hand is a sonography machine and the same is lying with the authorities past more than one month, we are of the view that the same should be released subject to the final outcome of this petition. 5. In such circumstances referred to above, we direct the respondent authorities to release the sonography machine at the earliest as the writ applicant has deposited the amount of Rs. 3,32,144/towards tax as well as penalty. Direct service is permitted." 3. While issuing notice, this Court directed that the vehicle as well as the goods be released, upon payment of the tax, in terms of the impugned notice. 4. The writ applicant availed the benefit of the interim order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law. 5. It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of Synergy Fertichem Pvt.Ltd V/s. State of Gujarat [Special Civil Application No.4730 of 2019]. It shall be open fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Clause (5) provides that on payment of the amount, referred to in subsection (1) of the proceedings in respect of the notice, specified in subsection (3) are deemed to be concluded, and in the last, clause (6) provides that if the tax and penalty is not paid within 14 days of detention or seizure, then further proceedings would be initiated in accordance with the provisions of Section 130. 101. We are of the view that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of the contravention of the provisions of the Act or the Rules. The second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to evade the payment of tax. Section 135 of the Act provides for presumption of culpable mental state but such presumption is available to the department only in the cases of prosecution and not for the purpose of Section 130 of the Act. What we are trying to convey is that in a given case, the contravention may be quite trivial or may not be of such a magnitude which by itself would be sufficient to take the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that may be determined under Section 129 of the Act. Such approach leads to unnecessary detention of the goods and the conveyance for an indefinite period of time. Therefore, what we are trying to convey is that all cases of contravention of the provisions of the Act or the Rules, by itself, may not attract the consequences of such goods or the conveyance confiscated under Section 130 of the Act. Section 130 of the Act is altogether an independent provision which provides for confiscation in cases where it is found that the intention was to evade payment of tax. Confiscation of goods or vehicle is almost penal in character. In other words, it is an aggravated form of action, and the object of such aggravated form of action is to deter the dealers from evading tax. 104. In the aforesaid context, we would like to clarify that we do not propose to lay down, as a proposition of law, or we should not be understood to have taken the view that, in any circumstances, the authorities concerned cannot invoke Section 130 of the Act at the threshold, I.e., at the stage of detention and seizure. What we are trying to convey is that for the purpose of invoking Section 130 of the Act at the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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