2020 (2) TMI 492

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....f mandamus or any other appropriate writ or order directing the learned Respondent authorities to forthwith release truck no.KA- 14-B-7993 along with the goods contained therein; C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to direct the learned Respondent authrities to forthwith release truck no.KA- 14-B-7993 along with the goods contained therein; D. Ex parte ad interm relief in terms of prayer C 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 petitioners shall forever pray." 3. A Co-ordinate Bench of this Court passed the following order, dated 27th March, 2019, while issuing notice to the respondents:- "1. Mr. Uchit Sheth, learned advocate for the petitioner invited the attention of the court to the provisions of sections 129 and 130 of the Central Goods and Services Tax Act, 2017, to point out the procedure which is required to be followed by the respondent authorities in case where any goods are in transit in contravention of the provision of the Ac....

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....e order of confiscation on 11.03.2019 under the provisions of Section 130 of the GGST Act / CGST Act in the prescribed Form No.MOV-11 thereby confiscating the goods and conveyance. The Copy of the said order was also sent via Registered Post at the address of the petitioner, however the same was returned, with endorsement of 'LEFT'. Annexed hereto and marked as Annexure-R-5Colly. are the copies of Form No.MOV-11, postal receipt and endorsement from postal department." 6. To the aforesaid, the writ applicant responded by filing an affidavit-in-rejoinder. In paragraph No.26 of the rejoinder, the following has been stated: "In so far as para 6.9 of the affidavit in reply is concerned it s respectfully submitted that if the impugned confiscation notice is held to be without jurisdiction then consequently the confiscation order passed on the basis of such notice will also be illegal." 7. It appears that while the writ applicant was heard before this Court, persuing the present writ application, a final order, in the Form GST MOV-11, came to be passed. However, according to the writ applicant, at no point of time such order was served upon him. As on date also, the writ-ap....

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....is, upon execution of a bond and furnishing of a security, in such manner and of such quantum, respectively, as may be prescribed or on payment of applicable tax, interest and penalty payable, as the case may be." 100. Section 129 further provides that the proper officer, detaining or seizing the goods or conveyances, is obliged to issue a notice, specifying the tax and penalty payable and, thereafter, pass an order for payment of such tax and penalty. Clause (4) provides that no tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. Clause (5) provides that on payment of the amount, referred to in sub-section (1) of the proceedings in respect of the notice, specified in sub-section (3) are deemed to be concluded, and in the 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....

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....ces 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 leads to unnecessary detention of the goods and the conveyance for an indefinite period of time. Therefore, what we are trying 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 ....