TMI Blog2020 (2) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... L CIVIL APPLICATION NO. 9975 of 2019 - - - Dated:- 29-1-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Mr. Jaimin R Dave for the Petitioner Mr Chintan Dave, AGP for the Respondent ORAL JUDGMENT PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA 1. Rule , returnable forthwith. Mr.Chintan Dave, the learned Assistant Government Pleader waives service of notice of rule for and on behalf of the respondents. 2. By this Writ Application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: a) Quash and set aside impugned notice dated 03.06.2019 issued under Section 130 of the Central Goods and Services Tax Act, 2017 at ANNEX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. A notice dated 03.06.2019 came to be issued under Section 130 of the GST Act calling upon the writ applicant to show cause as to why the conveyance and the goods shall not be confiscated and appropriate penalty and fine be imposed. The issue with regard to the legality and validity of such notice under Section 130 of the Act being issued is looked into by this Court in allied matters. However, taking into consideration the fact that the goods in question I.e. groundnut is a perishable commodity we direct the authorities to release the vehicle as well as the goods at the earliest on the writ applicant depositing an amount of ₹ 1,60,000/- (Rupees One Lakh Sixty Thousand Only) with the concerned authority at the earliest. The issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01. We are of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, straightway 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 oti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the authorities 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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