TMI Blog2020 (2) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... off. - R/SPECIAL CIVIL APPLICATION NO. 13207 of 2019 - - - Dated:- 29-1-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Mr Gautam H Gadhavi, Mr YH Motiramani 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 and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction quashing and setting aside notice dated 29.07.2019 issued in Form GST MOV-10 under Section 130 of the Central/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be intercepted. The vehicle, as well as the goods, came to be seized by the authorities concerned on the ground that the goods were not accompanied by E-way bill and some discrepancies were noticed in the nature of the goods mentioned in the invoice and the actual invoice in transit. 4. It appears that the respondent no.2 straightaway proceeded to issue notice for confiscation under Section 130 of the GST Act, 2007. 4. We are examining a larger issue whether the authority concerned can straightaway invoke Section 130 of the Act, without taking recourse to Section 129 of the Act. However, during the pendency of this writ-application, the writ applicant is entitled to an interim order. 5. We take notice of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the detention and seizure. This litigation is nothing but an outburst on the part of the dealers that practically in all cases of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 days of detention or seizure, then further proceedings would be initiated in accordance with the provisions of Section 130. 101. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 103. We take notice of the fact that practically in all cases, after the detention and seizure of the goods and the conveyance, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of invoking Section 130 of the Act at the very threshold, the authorities need to make out a very strong case. Merely on suspicion, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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