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TMI Blog2022 (5) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the petitioner, but from the record, a detailed written reply was given explaining his stand, which was not accepted. If factual aspects or perusal of record is warranted, the petitioner ought to have preferred an appeal, as provided under the Act. The scope of interference under Article 226 is very limited, hence the order passed by the authority warrants no interference. The writ petition is disposed off directing the petitioner to pay tax and penalty as ordered in the impugned order. But insofar as the payment of fine, we feel that the amount of Rs.9,00,000/-as ordered appears to be on higher side, as such the same is reduced to Rs.4,00,000/-. Insofar as fine relating to confiscation of conveyance is concerned, having regard to the fact that it is lying with the authorities since pretty long time, we feel that an amount of Rs.1,40,774/- as ordered to be paid may be reduced to Rs.1,00,000/-. - WRIT PETITION No.22975 OF 2021 - - - Dated:- 29-3-2022 - HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR AND HONOURABLE SMT. JUSTICE V. SUJATHA ORDER: (Per Hon ble Sri Justice C.Praveen Kumar) The present Writ Petition came to be filed, seeking issuance of Writ of Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyance. Exercising the power under Section 130 of SGST Act, 2017, the material along with vehicle came to be confiscated. It was further informed to the petitioner that all goods should be released on payment of tax, penalty and fine within 45 days from the date of said order. 3. Assailing the same, the present Writ Petition came to be filed, mainly contending that the order impugned, came to be passed without giving an opportunity of hearing the petitioner. 4. A counter came to be filed by the respondents disputing the averments made in the affidavit, filed in support of the Writ Petition. It is said that the driver of the vehicle did not carry any documents and as per the provisions enshrined in Section 68 r/w. Rule 138A of SGST Act and the Rules therein, a copy of e-way bill should accompany the goods. (a) It is further stated that the goods vehicle was intercepted on the highway at Tapovanam, and the plea taken by the petitioner that it was being intercepted while it was going towards weigh bridge, is incorrect. It is further stated in the counter that the provisions of Rule 138(1) of SGST Rules, 2017 only speaks about the obligation vested upon the registered p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act namely as to whether it is mandatory to follow Section 129 before passing an order of confiscation under Section 130 of the Act. 7. While dealing with Sections 129 and 130 of the Act, a Division Bench of Gujarat High Court in Synergy Fertichem Pvt.Ltd v. State of Gujarat 2020(33) G.S.T.L.513 (Guj.), held as under: 182. We would sum up our conclusion of the points raised in the writ applications as follows; (i) Section 129 of the Act talks about detention, seizure and release of goods and conveyances in transit. On the other hand, Section 130 talks about confiscation of goods or conveyance and levy of tax, penalty and fine thereof. Although, both the sections start with a non-obstante clause, yet, the harmonious reading of the two sections, keeping in mind the object and purpose behind the enactment thereof, would indicate that they are independent of each other. Section 130 of the Act, which provides for confiscation of the goods or conveyance is not, in any manner, dependent or subject to Section 129 of the Act. Both the sections are mutually exclusive. . (ii) The phrase with an intent to evade the payment of tax in Section 130 of the Act assumes im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings can be initiated only in the event of the failure on the part of the owner of the goods or the conveyance in depositing the amount towards the tax and liability determined under Section 129 of the Act. (viii) For the purpose of Section 129(6) of the Act, it would not be necessary for the department to establish any intention to evade payment of tax. If the tax and penalty, as determined under Section 129, is not deposited within the statutory time period, then the goods and the conveyance shall be liable to be put to auction and the sale proceeds shall be deposited with the Government. (ix) Similarly, the reference to Sections 73 and 74 respectively of the Act is not warranted for the purpose of interpreting Sections 129 and 130 of the Act, more particularly, when they all are independent of each other. The provisions of Sections 73 and 74 of the Act are similar to the provisions of Section 11A of the Central Excise Act and Section 28 of the Customs Act, which deal with the adjudication proceedings. Despite this, Section 110 is present in the Customs Act, which speaks about seizure and similarly, Section 129 is present in the Act for detention/seizure. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, even otherwise, the provisions of Section 110A of the Customs Act, which deal with the 'provisional release' of the goods, do not contemplate the release of the goods only on payment of penalty and interest but the proposed amount of fine is also to be included for provisional release of the goods. In view of this, the amount of fine should be taken into account while directing the provisional release of the goods/ conveyance as per Section 129(2) read with Section 67(6) of the Act read with Rule 140 of the Rules. (xiii) Although there is no serious challenge to the validity of the provisions of Sections 129 and 130 respectively of the Act, yet it is a settled principle of law that the power to levy tax includes all the incidental powers to prevent the evasion of such tax. The power to seize and confiscate the goods in the event of evasion of tax and the power to levy penalty are meant to check tax evasion and is intended to operate as a deterrent against the tax-evaders and are, therefore, ancillary or incidental to the power to levy tax on the goods and thus, fall within the ambit and scope of the legislative powers. 8. From the judgment of the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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