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TMI Blog2020 (2) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... this writ application stands disposed of. - R/SPECIAL CIVIL APPLICATION NO. 4730 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6125 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6118 of 2019 - - - Dated:- 19-2-2020 - MR. J.B. PARDIWALA and MR. BHARGAV D. KARIA JJ. Appearance: Uchit N. Sheth (7336) for the Petitioner(s) No. 1,2 Mr. Soham Joshi, LD. AGP for the Respondent(s) No. 1,2 COMMON ORAL ORDER (PER : MR.JUSTICE J.B.PARDIWALA) 1. Rule, returnable forthwith. Mr. Soham Joshi, the learned Assistant Government Pleader waives service of notice of rule for and on behalf of the respondents. 2. For the sake of convenience, we treat the Special Civil Application No.4730 of 2019 as the lead matter. 3. By this writ application under Article 226 of the Constitution of India, the writ applicants have 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 aside notice dated 1.3.2009 (annexed at Annexure A) issued by the learned Respondent No.2; (B) This Hon'ble Court may be pleased to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods with a limited shelf-life. 2. Having regard to the submissions advanced by the learned counsel for the petitioners, Issue Notice returnable on 8th March, 2019. Direct Service is permitted today. 2. In response to the notice, Mr. Soham Joshi, learned Assistant Government Pleader, has appeared on behalf of the respondents. 3. The learned Assistant Government Pleader has invited the attention of the Court to the detention order dated 14.02.2019 issued by the proper officer under sub-section (1) of section 129 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act ) and other relevant statutes. It was submitted that the goods in question were not accompanied by an E-way bill during the course of transit and therefore, the respondents are fully justified in passing the detention order under section 129(1) of the CGST Act. 4. Sub-section (3) of section 129 of the CGST Act provides that the proper officer detaining or seizing the goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law. 7. It shall be open for the writ applicants 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 circumstances, referred to above, we propose to take the view that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 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 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 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 suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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