9911796707
TMI Blog2020 (2) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... DIWALA and MR. BHARGAV D. KARIA JJ. Appearance: Mr. D. P. Kinariwala(410) for the Petitioner(s) No. 1 Mr. R.D. Kinariwala(6146) for the Petitioner(s) No. 1 Government Pleader(1) for the Respondent(s) No. 1,2,3 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. By this Writ Application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: (A) Your Lordships may be pleased to admit and allow this petition. (B) Your Lordships may be pleased to issue 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 GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 for the writ applicant to rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment, which read thus: 99. It is practically impossible to envisage various types of contravention 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 deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable 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 that no tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. Clause (5) provides that on payment of the amount, referred to in sub-section (1) of the proceedings in respect of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [AIR 1971 SC 2451]. In Sheonath Singh (supra), the Supreme Court held that the Court can examine the materials to find out whether an honest and reasonable person can base his reasonable belief upon such materials although the sufficiency of the reasons for 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
