9911796707
TMI Blog2020 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... g reliefs: "A. This Hon'ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus quashing and setting aside the order of detention passed by the respondent No.2 under Section 129(1) of the GST Act of the goods and conveyance bearing Truck No.RJ-19-GF-6225 at Unjha Highway at about 5:45 p.m. on 9.3.2019 as well as the notice dated 10.3.2019 issued by the respondent No.2 for confiscation of goods or conveyance and levy of penalty under Section 130 of the GST Act as the said actions of the respondent no.2 are absolutely illegal, unlawful, contrary to the facts and evidence on record, violative of principles of natural justice and against the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 129 of the Act, that the provisions of section 130 of the IGST Act can be resorted to. Referring to the impugned notice, it was pointed out that the same seeks to impose penalty, redemption fine and confiscation under section 130 of the Act without initiating any proceedings under section 129 of the Act, which is not permissible in law. 3. A perusal of the impugned notice reveals that in paragraphs 2, 3 and 4 thereof, there are various blanks which have not been filled in which makes it manifest that the procedure as required under the provisions of the Act as referred to in paragraphs 2, 3 and 4 have not been followed by the competent authority prior to issuance of the said notice. 4. Issue Notice to the respondents returnable on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be quite serious sufficient enough to justify the detention and seizure. This litigation is nothing but an outburst on the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is of intent to evade payment of tax. 103. We take notice of the fact that practically in all cases, after the detention 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 confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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