9911796707
TMI Blog2021 (2) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 226 of the Constitution of India, the writ applicant, has prayed for the following reliefs: "7(a) To quash and set aside the order of Detention dated 31/08/2019 (Annexure " A") issued by the Respondent No.2; (b) To quash and set aside the Show Cause Notice dated 04/09/2019 (Annexure "A1") issued by the Respondent No.2; (c) Pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the Order of Detention at Annexure "A" and Show Cause Notice at Annexure" A1" to this petition; (d) Direct the Respondent No.2 to release the Goods along with the Conveyance; (e) Direct the Respondent No.2 to return and transfer an amount to the tune of Rs. 22,54,205/- in the account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, interest or penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard. Clause (5) provides that on payment of the amount, referred to in subsection (1) of the proceedings in respect of the notice, specified in subsection (3) are deemed to be concluded, and in the last, clause (6) provides that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfortunately, he is not able to produce the eway bill , which is also one of the important documents so far as the Act, 2017 is concerned. The authenticity of the delivery challan is also not doubted. In such a situation, it would be too much for the authorities to straightway jump to the conclusion that the case is one of confiscation, I.e, the case 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 transporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2451]. In Sheonath Singh (supra), the Supreme Court held that the Court can examine the materials to find out whether an honest and reasonable person can base his reasonable belief upon such materials although the sufficiency of the reasons for the belief cannot be investigated by the Court. The formation of the opinion by the authority that the goods and the conveyance are liable to be confiscated should reflect intense application of mind. We are saying so because it is not any or every contravention of the provisions of the Act or the Rules which may be sufficient to arrive at the conclusion that the case is one of an intention to evade payment of tax. In short, the action must be held in good faith and should not be a mere pretence." 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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