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TMI Blog2020 (3) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... stice Bhargav D. Karia For the Petitioner : Mr Varis V Isani For the Respondent : Mr Soaham Joshi, AGP Government Pleader ORAL ORDER PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA 1. Rule, returnable forthwith. Mr. Soaham Joshi, 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 writapplicant, has prayed for the following reliefs: 17(A) Be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the confiscation notice dated 21.8.2019 in FORM-GST-MOV-10 (annexed at Annexure A); (B) 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.GJ04V4335 along with the goods contained therein; (C) Pending notice, admission and final hearing of this petition, be pleased to stay operation of the impugned detention/confiscation orders (annexed at Annexure A) and be pleased to further direct the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts as may be specified in this behalf, he shall be liable to pay a penalty of ₹ 10,000/or an amount equivalent to the tax evaded or the tax not deducted under section 51 etc. It was submitted that in this case, the petitioner is not liable to pay any tax and hence, at the most, the petitioner could be made liable to pay penalty of ₹ 10,000/. 5. Having regard to the submissions advanced by the learned advocate for the petitioner in the context of the documents produced on record, which prima facie indicate that the old and used Winch Machine was being transported from the premises of Yadav Trading Co. where it had been sent for repairs and was being transported back to Nirma Ltd., there is substance in the submissions made by the learned advocate for the petitioner that at best, the petitioner would be liable to pay fine of ₹ 10,000/as contemplated under clause (xiv) of section 122 of the GGST Act, 2017. 6. Under the circumstances, issue notice, returnable on 17.10.2019. By way adinterim relief, the respondents are directed to forthwith release Truck No.GJ04V4335 along with the goods contained therein subject to the petitioner depositing a sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection( 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 penalty. Clause (4) provides that no tax, interest or penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard. Clause (5) provides that on payment of the amount, referred to in subsection (1) of the proceedings in respect of the notice, specified in subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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 ready and willing to pay the tax and the penalty that may be determined under Section 129 of the Act. Such approach leads to unnecessary detention of the goods and the conveyance for an indefinite period of time. Therefore, what we are trying to convey is that all cases of contravention of the provisions of the Act or the Rules, by itself, may not attract the consequences of such goods or the conveyance confiscated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 7. It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged. 8. In view of the above, this writ applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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