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TMI Blog2020 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ALA AND MR. BHARGAV D. KARIA JJ. Appearance: MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2 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 writ applicants have prayed for the following reliefs: 17A. Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, direction or order, thereby quashing and setting aside letters dated 28.04.2019 and 30.04.2019 (Annexure-F) along with the decision conveyed to the petitioners under these three letters with all consequential reliefs and benefits. B. Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, direction or order, thereby quashing and setting aside detention of raw materials listed in Delivery Challan dated 08.04.2019 (Annexure-B) and also truck bearing registration No.GJ10TV6543, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as for the vehicle/s subject to the petitioner's right to challenge the same in accordance with law. 5. The writ applicants availed the benefit of the interim measure order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on 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. 6. It shall be open for the writ applicantd 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 applicants 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 out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nveyance, 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 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 thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provides for confiscation in cases where it is found that the intention was to evade payment of tax. Confiscation of goods or vehicle is almost penal in character. In other words, it is an aggravated form of action, and the object of such aggravated form of action is to deter the dealers from evading tax. 104. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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