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TMI Blog2020 (2) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing 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 impugned detention order dated 14.3.2019 (annexed at Annexure A)and impugned confiscation order dated 27.3.2019 (annexed at Annexure B) passed by the learned Respondent No.2; 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.MH-04 DK 9208 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released, on payment of the requisite amount. We are now called upon to adjudicate the legality and validity of the order passed by the authority in GST MOV-11. 5. The learned advocate, appearing for the writ applicant, vehemently submitted that the impugned order of confiscation is without any application of mind and not tanable in the law. 6. Two grounds have been raised by the department for the purpose of confiscation of the goods. First is that the e-way bill was not generated and the second ground was under valuation. In what state of circumstances the authority would be justified to invoke Section 130 of the Act, for the purpose of confiscation, is now explained in detail by this Court in the case of Synergy Fertichem Pvt.Ltd V/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) also provides that the provisions of sub-section (6) of Section 67 shall mutatis mutandis apply for detention and seizure of goods and conveyances. We quote Section 67(6) as under;"67(6) The goods so seized under sub-section(2) shall be released, on a provisional basis, upon execution of a bond and furnishing of a security, in such manner and of such quantum, respectively, as may be prescribed or on payment of applicable tax, interest and penalty payable, as the case may be." 100. Section 129 further provides that the proper officer, detaining or seizing the goods or conveyances, is obliged to issue a notice, specifying the tax and penalty payable and, thereafter, pass an order for payment of such tax and penalty. Clause (4) provides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in all cases, without any application 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for the authority under the Act to state reasons for its belief. For the time being, we proceed on the basis of such argument. But, if it is challenged that the notice is bereft of the necessary details or the satisfaction of the authority is imaginary or based on mere suspicion, then the authority must disclose the materials, upon which, his belief was formed as it has been held by the Supreme Court in Sheonath Singh's case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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