TMI Blog2020 (2) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of 2019 - - - Dated:- 29-1-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Uchit N Sheth for the Petitioner Mr Chintan Dave, AGP Government Pleader for the Respondent ORAL ORDER PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA 1. By this Writ-Application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs: [A] be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ or order directing the learned Respondent authorities to forthwith Truck No.MH-48-AG-0126 belonging to the petitioner; [B] be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on hand, the authorities concerned straightway invoked section 130 of the GST Act and have initiated confiscation proceedings. The larger issue as regards the sections 129 and 130 of the GST Act is being looked into by this Court. However, taking into consideration the fact that the amount towards the tax and penalty has been deposited, we direct the authorities to immediately release the goods in question owned by the writ applicant at the earliest. D.S. Permitted. 3.00. Pursuant to our above order dated 17/07/2019, referred to above, the goods which were seized came to be released. 4.0. This is a petition by the owner of the vehicle in which the goods in which the goods were being transported. As the goods have been rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conveyance to show-cause as to why the goods or the conveyance, as the case may be, should not be confiscated. Once such a notice under Section 130 of the Act is issued right at the inception, I.e, right at the time of detention and seizure, then the provisions of Section 129 of the Act pale into insignificance. The reason why we are saying so is that for the purpose of release of the goods and conveyance detained while in transit for the contravention of the provisions of the Act or the rules, the section provides for release of such goods and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. The second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to evade the payment of tax. Section 135 of the Act provides for presumption of culpable mental state but such presumption is available to the department only in the cases of prosecution and not for the purpose of Section 130 of the Act. What we are trying to convey is that in a given case, the contravention may be quite trivial or may not be of such a magnitude which by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 transported for the purposes of evading the tax . We have also come across notices of confiscation, wherein it has been stated that the the driver of the conveyance is presumed to have contravened the provisions of the Act or the Rules with an intent to evade payment of tax. This, in our opinion, is not justified. The resultant effect of such issue of confiscation notice at the very threshold, without any application of mind or without there being any foundation for the same, renders Section 129 of the Act practically otiose. We take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities 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 reasons for such belief in writing, and such reasons recorded in writing should, thereafter, be looked into by the superior authority so that the superior authority can take an appropriate decision whether the case is one of straightway invoking Section 130 of the Act. Any opinion of the authority to be formed is not subject to objective test. The language of Section 130 of the Act leaves no room for the relevance of an official examination as to the sufficiency of the ground on which the authority may act or proceed for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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