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TMI Blog2020 (3) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Notice in Form GST MOV-10 dated 2.8.2019 (annexed at Annexure-A) issued by the learned respondent No.2; [B] be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the learned Respondent authorities to forthwith release Truck No.GJ19V0906 alongwith the goods contained therein by quashing and setting aside the detention notice and orders (annexed at Annexure-C); [C] pending notice, admission and final hearing of the petition, be pleased to direct the learned Respondent authorities to forthwith release Truck No.GJ19V0906 alongwith the goods contained therein; [D] Ex parte ad-interim relief in terms of prayer C may kindly be granted; [E] Such furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the respondent No.2. 3. This Court is looking into the larger issues as regards the applicability of Sections 129 and 130 respectively of the Act, 2017. However, taking into consideration the fact that the goods are of perishable nature being the agricultural product and also considering the fact that the writ applicant has deposited an amount of Rs. 83,000/- with the respondent No.2 towards the tax and penalty, as determined, we are inclined to order release of the goods as well as the vehicle. In such circumstances, referred to above, the respondent No.2 is directed to release the vehicle as well as the goods at the earliest. 4. Direct service is permitted." 3. While issuing notice, this Court directed that the veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yance, 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 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons 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 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 conveyanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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