9911796707
TMI Blog2021 (11) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... lkata and engaged in the business of the leasing trucks and other vehicles on hire/fixed freight basis to various transporting entities enabling them to undertake transshipment work. The branch offices of the petitioner-firm are in various cities in India and one of them is at Delhi. The petitioner is the owner of the vehicle being registration No.HR55 S1171. On 06.10.2020, a transporter, namely, M/s Aruna Chaleshwara Transport Company, hired the aforesaid vehicle from Delhi Branch of the petitioner for the purpose of transportation of goods from Delhi to Vijaywada (Bhawanipuram) Andhra Pradesh on payment of consideration. During the course of transshipment, the vehicle was intercepted by the Assistant Commissioner (Mobile Squad), Unit-2, Commercial Tax, Agra (respondent no.3), who, after recording the statement of the driver of the vehicle, issued interception memo on 08.10.2020. Physical verification of the vehicle was done on 14.10.2020 and several items were found in excess and some other undeclared goods were found being transported. These goods and conveyance were seized. Accordingly, an order of demand under Section 129(3) of the Act was issued. Since neither the tax nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the transporter, he moved an application on 17.12.2020 before the Station House Officer in Police Station Alipur, Delhi for lodging an FIR. Further, on 25.01.2021, a letter was sent to the Commissioner of Appeals, New Delhi stating that a complaint had already been filed against the accused person in Police Station Alipur on 17.12.2020, but no action has been taken and, therefore, requesting him to register the case against the accused person. It is contended that when no action was taken by the police authorities, the petitioner was left with no option but to file an application dated 28.01.2021 under Section 156(3) of the Cr.P.C. praying for direction to the police authorities to lodge an FIR and conduct a proper and impartial inquiry. It is contended that due to the COVID-19 situation in the country, no final order has been passed on the aforesaid application. It is, therefore, contended that in view of the facts and circumstances of the case, the orders impugned in the present petition deserve to be set aside. Shri Mishra, learned Standing Counsel has urged that the petitioner deserves no indulgence from this Court. The contention is that though in the counter affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any corresponding Tax Invoice. A report was accordingly prepared in Form GST MOV-4 on 14.10.2020 and a copy thereof was duly received by the driver of the conveyance after making due declaration by appending his signature thereon. A copy of Form GST MOV-4 is appended as Annexure No.1 to the counter affidavit, to which there is no denial. Thereafter, the goods and conveyance were seized and detention memo in Form GST MOV-6 was issued. An order/notice dated 31.10.2020 in Form GST MOV-9 was issued in the name of the driver of the conveyance under Section 129 (3) of the Act specifying the tax and penalty. Subsequently, a show-cause notice in Form GST MOV-10 dated 23.12.2020 was issued which has been enclosed as Annexure No.8 to the writ petition. Evidently, the aforesaid Form GST MOV-10 dated 23.12.2020 contains the date for appearance of the petitioner as 28.11.2020, which date is prior to the date of issuance of the aforesaid notice. It appears that a confiscation order dated 29.11.2020 (Annexure No.9 to the writ petition) under Section 130 of the Act was passed in Form GST MOV- 11 that was addressed to the driver of the petitioner. It is pertinent to mention here that the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition has been filed against the order of the first appellate authority for the reason that the Appellate Tribunal has not been constituted under Section 109 of the Act. Where infringement of fundamental rights and non-compliance of the principles of natural justice are apparent, this Court would not hesitate to interfere even if suitable grounds were not raised in the memo of appeal filed before the first appellate authority. The provisions of Section 130 of the Act are quoted below:- "130. Confiscation of goods or conveyances and levy of penalty.- (1) Notwithstanding anything contained in this Act, if any person- (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made there under with intent to evade payment of tax; or (ii) does not account for any goods on which he is liable to pay tax under this Act; or (iii) supplies any goods liable to tax under this Act without having applied for registration; or (iv) contravenes any of the provisions of this Act or the rules made there under with intent to evade payment of tax; or (v) uses any conveyance as a means of transport for carriage of goods in contravention of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) of subsection (1) of Section 130 of the Act provides him with a right to demonstrate that the conveyance was so used without the knowledge or connivance of himself, his agent, if any, and the person in charge of the conveyance. On failure of submitting adequate proof, confiscation of the conveyance may be authorised under sub-section (2) of Section 130 of the Act, and thereafter a liability is also fixed on the owner of the conveyance under the third proviso to sub-section (2) for paying a fine equal to the tax payable on the goods being transported in the conveyance, in lieu of the confiscation of the conveyance. As a corollary to this, where the owner of the conveyance has proved that the conveyance was so used without his knowledge or connivance etc., then he would not be saddled with a liability as mentioned in the third proviso to sub-section (2). It is important to note that sub-section (3) of the Section 130 of the Act imposes further liability on the owner of the goods or the conveyance. However, sub-section (4) of Section 130 of the Act provides for an opportunity of hearing to a person before any order of confiscation of goods or conveyance or for imposition of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(1969) 2 SCC 262] that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248] also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corpn. v. Suvarna Board Mills [(1994) 5 SCC 566], this aspect was explained in the following manner: (SCC p. 568, para 3) "3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straitjacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences of seizure and of confiscation are different. Had the show cause notice Form GST MOV-10 been properly prepared, the petitioner could have had adequate opportunity to represent his case and, subject to such proof as required by clause (v) of sub-section (1) of Section 130 of the Act, would not have been saddled with the liability under sub-sections (2) and (3) of Section 130 of the Act. Therefore, the show cause notice Form GST MOV-10 that was issued was defective which resulted in denial of opportunity to the petitioner, and as such, cannot be said to be a show cause notice in the eyes of law. Thus, not only have the principles of natural justice not been complied with by the respondents, the petitioner has also been prejudiced by such non-compliance. There is no material on record to demonstrate that an opportunity of hearing was duly granted to the petitioner as is the mandate of sub-section (4) of Section 130 of the Act. Under the circumstances, the order dated 28.06.2021 (as corrected on 25.09.2021) passed by the Additional Commissioner Grade II (Appeal)-I, State Tax, Agra as well as the order dated 29.11.2020 Form GST MOV-11 passed by the Assistant Commissioner (Mob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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