9911796707
TMI Blog2020 (2) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ of prohibition or any other appropriate writ, order or direction, directing respondents not to proceed further with reference to the order dated 09.10.2019 passed under section 130 of the GST Act as by holding that he has no authority to pass an order under section 130 without following provision of section 129. (C) Pending admission hearing and final disposal of this petition, be pleased to release the goods and the vehicle which are detained as per the order produced at Annexure-F to this petition on the condition as this Hon'ble Court deemed fit. (D) Be pleased to grant any other relief/s as may deem fit proper, in the interest of justice." 2. We take note of the order passed by a Coordinate Bench of this Court dated 23r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice, specified in sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detention and seizure of the goods and the conveyance, straightway notice is issued under Section 130, and in the said notice, one would find a parrot like chantation " as the goods were being transported without any valid documents, it is presumed that the goods were being transported for the purposes of evading the tax". We have also come across notices of confiscation, wherein it has been stated that the the driver of the conveyance is presumed to have contravened the provisions of the Act or the Rules with an intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voke 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 very threshold, the authorities need to make out a very strong case. Merely on suspicion, the authorities may not be justified in invoking Section 130 of the Act straightway. If the authorities 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 invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the belief cannot be investigated by the Court. The formation of the opinion by the authority that the goods and the conveyance are liable to be confiscated should reflect intense application of mind. We are saying so because it is not any or every contravention of the provisions of the Act or the Rules which may be sufficient to arrive at the conclusion that the case is one of an intention to evade payment of tax. In short, the action must be held in good faith and should not be a mere pretence." 6. It is now for the applicant to make good his case that the show cause notice, issued in GST-MOV-10, deserves to be discharged. 7. In view of the above, this writ application stands disposed of. Rule is made absolute to the aforesaid extent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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