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TMI Blog2020 (2) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... nt(s) No. 2 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Chintan Dave 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-a proprietorship concerned, through its proprietor, has prayed for the following relief: A. This Hon ble Court may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction quashing and setting aside detention order dated 22.4.2019 in Form GST MOV-6 (annexed at Annexure A) and confiscation order dated 11.4.2019 in Form GST MOV-11 (annexed at Annexure B); B. This Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ or order directing the learned Respondent authorities to forthwith release truck no.HR-55 J 2914 along with the goods contained therein; C. Pending notice, admission and final hearing of this petition, this Hon ble Court may be pleased to stay operation of the impugned detention / confiscation orders (an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities, the amount due and payable is ₹ 3,93,750=00. There are many larger issues involved in this petition, more particularly, with regard to the interpretation of Sections 129 and 130 of the GST Act. Many petitions have been admitted and are pending for consideration in this regard. We propose to pass an order directing the respondent authorities to release the goods on the writ-applicant depositing the balance amount, I.e. ₹ 2,08,250=00. In passing the aforesaid order, we take support of one order passed by a co-ordinate Bench of this Court dated 8th March 2019 in the Special Civil Application No.4730 of 2019. The order reads thus: 1. On 06.03.2019 this Court had passed an order in the following terms: 1. Mr.Uchit Sheth, learned advocate for the petitioners invited the attention of the court to the provisions of sections 129 and 130 of the Central Goods and Services Tax Act, 2017, to point out the procedure which is required to be followed by the respondent authorities in case where any goods are in transit in contravention of the provision of the Act or the rules made thereunder. It was pointed out that firstly, under section 129 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question as well as the vehicle should not be confiscated for non-payment of an amount of ₹ 60,72,639/-, as detailed therein. On a query by the Court, the learned Assistant Government Pleader is not in a position to point out that the procedure, as contemplated under subsections (3) and (4) of section 129 of the CGST Act, has been followed. Thus, prima facie, it appears that the show-cause notice under section 130 of the CGST Act has been issued without complying with the requirements of section 129 of the CGST Act. It is also an admitted position that the goods in question are perishable in nature. 6. In the aforesaid premises, in the opinion of this Court, the petitioner has made out a strong prima facie case for the grant of interim relief. By way of interim relief, the respondents are hereby directed to forthwith release the goods in question and the Truck bearing registration no. GJ-07UU-7250 detained/seized under purported exercise of powers under sections 129 and 130 of the CGST Act. However, the petitioner shall file an undertaking before this Court within a week from today to the effect that in case the petitioner, ultimately, does not succeed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travention of the provisions of the Act or the Rules for the purpose of detention and seizure of the goods and conveyances in transit. The contravention could be trivial or it may be quite serious sufficient enough to justify the detention and seizure. This litigation is nothing but an outburst on the part of the dealers that practically in all cases of detention and seizure of goods and conveyance, the authorities would straightway invoke Section 130 of the Act and thereby would straightway issue notice calling upon the owner of the goods or the owner of the conveyance to show-cause as to why the goods or the conveyance, as the case may be, should not be confiscated. Once such a notice under Section 130 of the Act is issued right at the inception, I.e, right at the time of detention and seizure, then the provisions of Section 129 of the Act pale into insignificance. The reason why we are saying so is that for the purpose of release of the goods and conveyance detained while in transit for the contravention of the provisions of the Act or the rules, the section provides for release of such goods and conveyance on payment of the applicable tax and penalty or upon furnishing a securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of mind and without any justifiable grounds or reasons to believe, the authorities may not be justified to straightway issue a notice of confiscation under Section 130 of the Act. For the purpose of issuing a notice of confiscation under Section 130 of the Act at the threshold, I.e,. at the stage of Section 129 of the Act itself, the case has to be of such a nature that on the face of the entire transaction, the authority concerned is convinced that the contravention was with a definite intent to evade payment of tax. We may give one simple example. The driver of the vehicle is in a position to produce all the relevant documents to the satisfaction of the authority concerned as regards payment of tax etc., but unfortunately, he is not able to produce the e-way bill , which is also one of the important documents so far as the Act, 2017 is concerned. The authenticity of the delivery challan is also not doubted. In such a situation, it would be too much for the authorities to straightway jump to the conclusion that the case is one of confiscation, I.e, the case is of intent to evade payment of tax. 103. We take notice of the fact that practically in all cases, after the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities are of the view that the case is one of invoking Section 130 of the Act at the very threshold, then they need to record their reasons for such belief in writing, and such reasons recorded in writing should, thereafter, be looked into by the superior authority so that the superior authority can take an appropriate decision whether the case is one of straightway invoking Section 130 of the Act. Any opinion of the authority to be formed is not subject to objective test. The language of Section 130 of the Act leaves no room for the relevance of an official examination as to the sufficiency of the ground on which the authority may act or proceed for the purpose of confiscation at the very threshold. But, at the same time, there must be material based on which alone the authority could form its opinion in good faith that it has become necessary to call upon the owner of the goods as well as the owner of the conveyance to show-cause as to why the goods and the conveyance should not be confiscated under Section 130 of the Act. The notice for the purpose of confiscation must disclose the materials, upon which, the belief is formed. It could be argued that it is not necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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