9911796707
TMI Blog2020 (3) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... side detention order dated 17.09.2019 in Form GST MOV-6 (annexed at Annexure A) and confiscation notice dated 24.09.2019 in Form GST MOV-10 (annexed at Annexure B) (B) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ or order directing the learned Respondent authorities to forthwith release truck No. RJGC- 7676 along with the goods contained therein without directing any payment of tax and penalty and/or security and bond. (C ) Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay operation of the impugned detention/confiscation orders / notices (annexed at Annexure A/B) and this Hon'ble Court be ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.The learned Assistant Government Pleader has produced Annexure-1 to the Form GST-MOV-10 wherein the market value of the goods has been stated by the concerned officer. However, on a perusal of the original file, there is nothing to show as to on what basis such market value has been arrived at. 4.Under the circumstances, issue rule, returnable on 28th November 2019. By way of interim relief, the second respondent is directed to forthwith release the conveyance bearing number RJ-27-GC- 7676 together with the goods contained therein. 5.The petitioner shall file an undertaking before this court that in case the petitioner is ultimately held liable to pay any tax, penalty or fine, the petitioner shall duly pay the same subject to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 the rules, the section provides for release of such goods and conveyance on payment of the applicable tax and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 same, renders Section 129 of the Act practically otiose. We take cognizance of the fact that once the notice under Section 130 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightway. 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 the ground on which the authority may act or proceed for the purpose of confiscation at the very threshold. But, at the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
