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TMI Blog2020 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... writ applicant has prayed for the following reliefs: "(A) This Hon'ble Court may kindly be pleased to issue a Writ of Mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus quashing and setting aside the order of detention passed by the respondent no.2 under Section 129(1) of the GST Act of the goods and conveyance bearing Truck No.GJ-04-GB- 6069 at Bavla Highway at about 5:45 p.m. on 9.3.2019 as well as the notice issued by the respondent no.2 for confiscation of goods or conveyances and levy of penalty under Section 130 of the GST Act as the said actions of the respondent no.2 are absolutely illegal, unlawful contrary to the facts and evidence on record, violative of principles of natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PAN card and Aadhar card / Election card for identification of the petitioner and address of the petitioner. 3. Stand over to 19th June, 2019. Direct service is permitted." 4. While passing the aforesaid order, this Court directed that the vehicle as well as the goods be released, upon payment of the tax, subject to the writ applicant paying the tax and penalty as computed by the respondent authorities and also subject to filing a solemn undertaking before this court to the effect that the petitioner shall make good the deficit liability, if any, as may be determined finally by the authorities for the goods as well as for the vehicle/s subject to the petitioner's right to challenge the same in accordance with law. 5. The writ app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 conveyance on payment of the applicable tax and penalty or upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) to Clause (1) of Section 129. Section 129(2) also provides that the provisions of sub-section (6) of Section 67 shall mutatis mutandis apply for detention and seizure of goods and conveyances. We quote Section 67(6) as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 itself would be sufficient to take the view that the contravention was with the necessary intent to evade payment of tax. 102. In such circumstances, referred to above, we propose to take the view that in all cases, without any application of mind and without any justifiable grounds or reasons to believe, the authorities may not be justified to straightway issue a notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumed 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 cognizance of the fact that once the notice under Section 130 of the Act is issued, then the vehicle is not released even if the owner of the goods is ready and willing to pay the tax and the penalty that may be determined under Section 129 of the Act. Such approach leads to unnecessary detention of the goods and the conveyance for an indefinite period of time. Therefore, what w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 the purpose of confiscation at the very threshold. But, at the same time, there must be material based on which alone the authority could form its opinion in good faith that it has become necessary to call upon the owner of the goods as well as the owner of the conveyance to show-cause as to why the goods and the conveyance should not be confiscated under Section 130 of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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