9911796707
TMI Blog2020 (3) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 along with the goods contained therein; (C) Pending notice, admission and final hearing of this petition, be pleased to stay operation of the impugned detention/confiscation orders (annexed at Annexure A) and be pleased to further direct the learned Respondent authorities to forthwith release truck No.GJ04V4335 along with the goods contained therein; (D) Exparte adinterim relief in terms of prayer may kindly be granted; (E) Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray." 3. We take note of the order, passed by a Coordinate Bench of this Court, dated 27th September, 2019, which reads thus: "1. Mr. Varis V. Isani, learned advocate for the petitioner has submitted that the petitioner had a work order in respect of some jobwork for which a Winch Machine was transported to Nirma Ltd., Kala Talav. However, on account of some defect in the machinery, the same was taken back to the premises of the petitioner directly to Yadav Trading Co., namely, the dealer from whom the machinery has been purchased for the purpose of repairs on 20.8.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnable on 17.10.2019. By way adinterim relief, the respondents are directed to forthwith release Truck No.GJ04V4335 along with the goods contained therein subject to the petitioner depositing a sum of Rs. 10,000/with the respondent authorities. 7. Direct service, is permitted." 4. While issuing notice, this Court directed that the vehicle as well as the goods be released, upon payment of the tax, in terms of the impugned notice. 5. The writ applicant availed the benefit of the interimorder passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law. 6. It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of Synergy Fertichem Pvt.Ltd Vs. State of Gujarat [Special Civil Application No.4730 of 2019]. It shall be open for the writ applicant to rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment, which read thus: "99. It is practically impossible to envisage various t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e last, clause (6) provides that if the tax and penalty is not paid within 14 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 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 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to convey is that all cases of contravention of the provisions of the Act or the Rules, by itself, may not attract the consequences of such goods or the conveyance confiscated under Section 130 of the Act. Section 130 of the Act is altogether an independent provision which provides for confiscation in cases where it is found that the intention was to evade payment of tax. Confiscation of goods or vehicle is almost penal in character. In other words, it is an aggravated form of action, and the object of such aggravated form of action is to deter the dealers from evading tax. 104. In the aforesaid context, we would like to clarify that we do not propose to lay down, as a proposition of law, or we should not be understood to have taken the view that, in any circumstances, the authorities concerned cannot invoke Section 130 of the Act at the threshold, I.e., at the stage of detention and seizure. What we are trying to convey is that for the purpose 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
