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TMI Blog2020 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... w for the applicant to make good his case that the show cause notice, issued in Form GST MOV-10, deserves to be discharged. Application disposed off. - R/SPECIAL CIVIL APPLICATION NO. 13306 of 2019 - - - Dated:- 29-1-2020 - MR. J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: MR.D K.PUJ(3836) for the Petitioner(s) No. 1 MR CHINTAN DAVE, AGP GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 RULE SERVED BY DS(65) for the Respondent(s) No. 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] be pleased to issue a writ of mandamus, or any other appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims to be the owner of a Truck bearing registration No.GJ 01 BY 6197, which came to be seized by the respondents authorities alongwith the goods while in transit. This writ application has something to do with the 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 ₹ 2,06,680/ Plus (+) ₹ 26,440/has been deposited by the writ applicant towards the tax and penalty. The receipts are on Page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the provisions of Section 130. 101. We are of the view that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 sufficiency of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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