9911796707
TMI Blog2020 (5) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ased 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 9.3.2019 (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.GJ-01 DT 5949 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.GJ-01 DT 5949 along with the goods and contained therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in paragraph 4 of the order (Annexure-A) and point out as to what time was allowed to the owner of the goods or the person in charge of the conveyance to pay the applicable tax and penalty. 4. In the present case, the petitioner has made a categorical averment in the petition that the amount of tax and penalty has been paid. Under the circumstances, there is no reason for the respondents to withhold the release of the truck in question together with the goods. Under the circumstances, the respondents are directed to forthwith release Truck No.GJ- 01-DT-5949 along with the goods contained therein. Direct service is permitted today." 4. While issuing notice, this Court directed that the vehicle as well as the goods be released, upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 rules, the section provides for release of such goods and conveyance on payment of the applicable tax and penalty or upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) to Clause (1) of Section 129. Section 129(2) also provides that the provisions of sub-section (6) of Section 67 shall mutatis mutandis apply for detention an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ground on which the authority may act or proceed for the purpose of confiscation at the very threshold. But, at the same time, there must be material based on which alone the authority could form its opinion in good faith that it has become necessary to call upon the owner of the goods as well as the owner of the conveyance to show-cause as to why the goods and the conveyan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
