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TMI Blog2020 (4) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 impugned Notice in Form GST MOV-10 dated 2.3.2019 (annexed at Annexure A) issued by the learned Respondent No.2; B. 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 or order directing the learned Respondent authorities to forthwith release truck no.HR-55 M 3014 along with the goods contained therein; C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to direct the learned Respondent authorities to forthwith release truck no. HR-55 M 3014 along with the goods and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not permissible in law. It was further submitted that the tax as well as penalty under section 129 of the IGST Act in terms of the impugned notice have already been paid by the petitioner. 2. Having regard to the submissions advanced by the learned counsel for the petitioner, Issue Notice returnable on 10th April, 2019. The respondents shall also show cause as to why costs should not be imposed upon the respondents for noncompliance of the relevant statutory provisions. 3. Considering the fact that the petitioner has already deposited tax and penalty under section 129 of the IGST Act, by way of ad-interim relief, the respondents are directed to forthwith release Truck No.RJ-14-GH- 3440 along with the goods contained therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance 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 ..... 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, ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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