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TMI Blog2023 (3) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax and penalty. The proceedings would continue under section 130 of the Act. In this regard, attention of the court was invited to the order of the Apex Court in State of Punjab vs. M/s. Shiv Enterprises and Ors. being Civil Appeal No. 359 of 2023 arising out of SLP (C) No. 19295 of 2022) [ 2023 (1) TMI 842 - SUPREME COURT ] wherein in the similar circumstances, the Apex Court was of the view that the proposed notice under section 130 was yet to be adjudicated. The court finds it appropriate to dispose of the present petition with certain conditions and directions. Learned advocate for the petitioner stated that the petitioner is ready to comply with the conditions of the very nature imposed in Irshadbhai Hamidbhai Rain - it is dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When the goods were in transit, the truck was intercepted by the mobile squad of respondent No.2 seeking to seize the goods and conveyance. Notice dated 20.11.2022 was issued which resulted into passing of order dated 23.11.2022 under section 129 of the Act. 3.1 While the goods were seized as above, the authorities proceeded to pass another order under section 130 of the Act confiscating the goods. 3.2 Section 129 of the Act deals with the detention, seizure and release of goods and conveyance in transit. The provisions reads as under, Section 129. Detention, seizure and release of goods and conveyances in transit. (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or seizure, specifying penalty payable, and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment penalty under clause (a) or clause (b) or of sub-section(1). (4) No penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of such goods fails to pay the amount of penalty under sub-section (1) within fifteen days from the date of receipt of the copy of the order passed under subsection (3), the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance, then, all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122. (2) Whenever confiscation of any goods or conveyance is authorised 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 penalty equal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (c) of the section. On the other hand, as could be prima facie gathered, the confiscation under section 130 would lead to the imposition of penalty proceedings under section 130 are adjudicatory in nature. 4. Learned advocate for the petitioner assailed the impugned orders on various grounds including that while issuing the show cause notice, the authority never intended to invoke the jurisdiction under section 130 of the Act and further that without succeeding steps under section 129 releasing the goods, the invocation of section 130 readily stands to be arbitrary and illlegal exercise of powers. 4.1 Learned advocate for the petitioner relied on the decision in Irshadbhai Hamidbhai Rain vs. State of Gujarat dated 22.7.2022 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was issued. Therefore, we are of the opinion that the High Court has materially erred in entertaining the writ petition against the show cause notice and quashing and setting aside the same. However, at the same time, the order passed by the High Court releasing the goods in question is not to be interfered with as it is reported that the goods have been released by the appropriate authority. In view of the above and for the reasons stated above and without expressing anything on merits in favour of either parties, more particularly, against respondent-herein (original writ petitioner), on the aforesaid ground alone, we set aside the impugned judgment and order passed by the High Court to the extent quashing and setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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