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TMI Blog2020 (2) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1,2 Oral Judgment (Per : Mr. J.B.Pardiwala) JUDGMENT 1. Rule returnable forthwith. Mr.Chintan Dave, the learned Assistant Government Pleader 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 proprietary concern, through its proprietor, has prayed for the following reliefs: A. This Hon ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction quashing and setting impugned Notice in Form GST MOV- 10 dated 26.2.2019 (annexed at Annexure A) issued 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.KA- 14-B-7993 along with the goods contained therein; C. Pending notice, admission and final hearing of this petition, this Hon ble Court may be pleased to direct the learned Respondent authrities to forthwith release truck no.KA- 14-B-7993 along with the goods contained therein; D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely, does not succeed in the petition, he shall duly cooperate in the further proceedings. Direct Service is permitted. 4. It appears that by way of an ad-interim order, the respondents were directed to release the truck along with the goods. The writ applicant availed the benefit of interim order and got the goods and the truck released, after making payment towards the tax and penalty. 5. It appears that the State-respondent appeared before this Court and filed an affidavit-in-reply. In paragraph No.6.9 of the reply filed on behalf of the respondents, the following has been stated: In furtherance to this, after considering the reply as well as the facts and circumstances involved in the present case, the respondent No.2 passed the order of confiscation on 11.03.2019 under the provisions of Section 130 of the GGST Act / CGST Act in the prescribed Form No.MOV-11 thereby confiscating the goods and conveyance. The Copy of the said order was also sent via Registered Post at the address of the petitioner, however the same was returned, with endorsement of LEFT . Annexed hereto and marked as Annexure-R-5Colly. are the copies of Form No.MOV-11, postal receipt and endorseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 security equivalent to the amount payable under clause (a) or clause (b) to Clause (1) of Section 129. Section 129(2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 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 to evade payment of tax. This, in our opinion, is not justified. The resultant effect of such issue of confiscation notice at the very threshold, without any application of mind or without there being any foundation for the same, renders Section 129 of the Act practically otiose. We take cognizance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 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 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 [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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