9911796707
TMI Blog2022 (4) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. It is settled law that if a public functionary acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. Harassment by public authorities is socially abhorring and legally impermissible which causes more serious injury to society. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention for compliance of order of this Court, linger on leaving the petitioner to run from one end to other with no result. Therefore, award of compensation for unauthorised, arbitrary and illegal detention of the truck of the petitioner by the respondent authorities would not only compensate the petitioner for loss suffered by him but it would also help in improving work culture and public confidence in rule of law. Thus, as per pleadings, the petitioner is suffering financial loss of ₹ 5000/- per day since the date of detention of truck, i.e. 14.10.2020. Since determination of loss due to arbitrary, illegal and unauthorised detention by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, he issued an order of detention dated 14.10.2020 in MOV-06. Since neither the owner of the goods nor the transporter, i.e., the hirer, came forward to deposit the tax and penalty as demanded by order dated 31.10.2020, the respondent no.2 initiated proceedings under Section 130 of the CGST/UPGST Act, 2017 for confiscation of the truck in question. In this regard, a notice in GST MOV-10 dated 23.12.2020 was issued to the petitioner fixing the date for hearing on 28.11.2020. Immediately on the receipt of the aforesaid notice, the petitioner submitted an application dated 05.12.2020 before the respondent no.2 bringing to his notice the entire facts and requested to release the truck. However, in the meantime, the respondent no.2, without affording any opportunity of hearing to the petitioner, passed an order of confiscation dated 29.11.2020 in GST MOV-11. 4. Aggrieved with the aforesaid order of confiscation dated 29.11.2020, the petitioner filed First Appeal No.63 of 2021 before the appellate authority which was dismissed by order dated 28.06.2021. In the meantime, the petitioner also attempted to lodge a first information report on 17.12.2020 against the hirer for usin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s misplaced. The proceedings and consequences 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit: Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of law aforestated also find support from the law laid down by Hon'ble Supreme Court in Lucknow Development Authority vs. M.K. Gupta; (1994) 1 SCC 243 and N. Nagendra Rao and Company vs. State of Andhra Pradesh; (1994) 6 SCC 205 . 11. In paragraph 46 of the writ petition, the petitioner has stated that the petitioner is facing recurring financial loss due to detention of its truck since 14.10.2020. In paragraph 8 of the application dated 05.12.2020 submitted by the petitioner before the respondent no.2, it has been stated as under :- 8. That due to keeping of the said truck under custody my client is not in a position to run his business and he is paying salary to the driver and he is bearing bank EMI. Taxes and Insurances of that truck and in the manner aforesaid he is suffering loss at least ₹ 5,000/- per day. 12. Thus, as per pleadings, the petitioner is suffering financial loss of ₹ 5000/- per day since the date of detention of truck, i.e. 14.10.2020. Since determination of loss due to arbitrary, illegal and unauthorised detention by the respondent no.2, is a question of fact, therefore, we direct the Commissioner of Commercial Tax, U.P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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