TMI Blog2020 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 - - - Dated:- 12-2-2020 - MR. J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3 ORAL ORDER (PER : MR.J.B.PARDIWALA) 1. Rule, returnable forthwith. Mr. Soaham Joshi, 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: 7(a) To quash and set aside the Show-Cause Notice dated 28.05.2019 (Annexure-A) issued by the respondent no.3. (b) Pending the admission, hearing and final disposal of this pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the tune of ₹ 1,44,180/. 3 The principal issue raised in this writ application is with regard to the legality and validity of the notice issued by the department under Section 130 of the Act. There are many petitions pending on this issue, more particularly, whether Section 129 would apply or Section 130 could straightway be invoked by the authorities. The principal issue will be decided by this Court along with the other petitions, which are pending. However, we direct the authorities to release the conveyance as well as the goods on the writ depositing an amount of ₹ 1,44,180/with the department. On deposit of the said requisite amount, the conveyance as well as the goods shall immediately be released. 4 Post the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detained while in transit for the contravention of the provisions of the Act or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the Act. What we are trying to convey is that in a given case, the contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, without any application of mind or without there being any foundation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 leaves no room for the relevance of an official examination as to the sufficiency of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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