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TMI Blog2020 (2) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... 13298 of 2019 - - - Dated:- 29-1-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Mr.D K.Puj for the Petitioner Mr Chintan Dave, AGP Government Pleader for the Respondent 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] be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus quashing and setting aside the order of detention dated 10.7.2019 passed by the respondent no.3 under section 129(1) of the GST Act of the goods and conveyance bearing Truck No.GJ-04-U-5196 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections-129 and 130 respectively of the GST Act, 2017. This Court is examining the larger issues involved so far as the applicability of the two sections referred to above is concerned. The writ-applicant is here before this Court with a prayer that his truck alongwith the goods may be released pending the final disposal of this petition. We take notice of the fact that an amount of ₹ 1,99,176/- Plus (+) ₹ 11,812/- has been deposited by the writ-applicant towards the tax and penalty. The receipts are on Page-27 and 28 respectively, Annexure-H collectively. In such circumstances, the respondents are directed to immediately release the truck as well as the goods seized by them under the provisions of the GST Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon 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 security equivalent to the amount payable under clause (a) or clause (b) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 culpable mental state but such presumption is available to the department only in the cases of prosecution and not for the purpose of Section 130 of the Act. What we are trying to convey is that in a given case, the contravention may be quite trivial or may not be of such a magnitude which by itself would be sufficient to take the view that the contravention was with the necessary intent to evade payment of tax. 102. In such circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 of the fact that once the notice under Section 130 of the Act is issued, then the vehicle is not released even if the owner of the goods is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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