TMI Blog2022 (5) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... of GST Act - HELD THAT:- If after adjudging proceedings under section 130 of the Act, ultimately if the proper officer finds any contravention with intention to evade tax, the question of Fine may also arose in addition to the tax payable, penalty and other charges, and if not realized then the proper officer will be required to proceed for confiscation and auction of the goods and conveyance so detained. The Court has to strike balance as against the prayer of provisional release of goods and conveyance vis-a-vis securing revenue interest pending adjudication of confiscation proceedings. The respondent authorities are directed to provisionally release the goods and conveyance subject to the condition that the writ applicant shall deposit the total amount payable, including penalty, as determined by the respondent authority within period of one week from date of receipt of this order and upon realisation of such amount, the respondent authority shall forthwith release such goods and conveyance - petition disposed off. - R/SPECIAL CIVIL APPLICATION NO. 7425 OF 2022 & 7426 OF 2022 - - - Dated:- 28-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that Sections-129 and 130 of the Act are distinct and independent of each-other. Once the Proper Officer decides to issue notice in Form GST Mov-10 calling upon the owner of the conveyance and the goods to show cause as to why the goods and conveyance should not be confiscated, then it is not obligatory for the Proper Officer to issue notice as contemplated under Subsection (3) of Section-129. 8. Mr. Nanavati has placed reliance on one decision of the Karnataka High Court in the case of M.S. Meghdoot Logistics Vs. Commercial Tax Officer; Writ Petition No.10832 of 2020; decided on 21.12.2020, wherein in Paragraph-29 of the judgment, the High Court has observed as under:- 29. In the light of the above discussion it is held that if after interception of conveyance with goods in transit and detention of the conveyance and seizure of the Goods with issuance of notice under section 129(3) of the Act, and when there is information about the intent to evade payment of tax, it is not open to the proper officer to treat the notice under section 129(3) of Act as having abated or truncate such proceedings and initiate proceedings under 130 of the Act for confiscation with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter was taken up for hearing, as directed by this Court, Mr. Utkarsh Sharma, the learned AGP has placed on record the details of exact amount payable by the writ applicant in terms of Sub-Section 3 of Section 129 of the CGST Act, 2017. The same is ordered to be taken on record. The calculation provided by the respondent authority reveals that total amount payable which includes penalty, by the writ applicant of Special Civil application no. 7425 of 2022 comes to around Rs.4,48,400 and for Special Civil application no. 7426 of 2022, comes to around Rs.4,81,248. 4. We have heard Mr. Maulik Nanavati , the learned advocate appearing for writ applicants and Mr. Utkarsh Sharma, Learned AGP for the respondent state authorities. 5. Mr. Maulik Nanavati, the learned advocate appearing for the writ applicants has vehemently submitted that the respondent No.1 herein in absence of discrepancy being found at the stage of MOV- 6 as regards preliminary inspection of the goods vis-a-vis invoice bills and corresponding E-way bills furnished by the driver of the conveyance and in absence of evasion of tax, the respondent No.1 has no authority to assume jurisdiction under Section 130 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the payment of tax which is payable in accordance with law. However, the element of means rea cannot be read into Section 130 of the Act .. (emphasis added) 6. He further submitted that he is agreeable to deposit requisite tax and penalty and once that tax and penalty as determined by the Proper Officer is paid, all proceedings are deemed to be concluded as provided under sub section (5) of section 129 of the CGST Act. He thereafter relied upon the amendment incorporated in section 130 of the Act, 2017 and submitted that the proper officer cannot proceed for confiscation of goods and conveyance in transit. He submitted that even otherwise this Court in exercise of powers conferred under Article 226 of the Constitution of India has got wide jurisdiction and can always consider the relief of the provisional release of conveyance and goods pending the proceedings under Section 130 of the Act, 2017. 7. On the other hand, Mr. Utkarsh Sharma, the learned AGP has strongly opposed the aforesaid prayers of the writ applicants by drawing attention of this Court to amendment incorporated under Sections 129 and 130 of the Act, 2017, w.e.f. 01.01.2022. He emphasized on the substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST Act, 2017 calling upon the writ applicant as to why the goods and conveyance may not be confiscated. It appears that while the goods were in transit, on 8.04.2022, the same were intercepted by the State Tax Officer, Mobile squad , Jamnagar, Division-1 (ENF) whereby the statement of the driver was recorded and the respondent authority had in exercise of power conferred under sub-section (3) of section 68 of the Act, 2017 issued FORM GST MOV-02, dated 8.04.2022, for physical verification of goods in movement. The respondent authority has thereafter issued FORM GST MOV-04, dated 11.04.2022 and followed by FORM GST MOV-06, wherein the authority records that the transaction is found suspicious though no discrepancies have been found in the E-way bills and the invoices. It is the case of the writ applicant that the authority without determining the tax and the penalty amount continued to detained the goods and conveyance and proceeded to issue notice under section 130 of the Act. 9. Thus, the moot question which arises for our consideration is whether the respondent authority is entitled to seize and detain the goods in transit and the conveyance, more particularly, when it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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