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TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 524
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....re of mandamus to quash and setting aside the notice issued by the respondent no.2 for confiscation of goods and conveyances and levy of penalty under Section 130 of the GST Act; [B] A writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus directing the learned Respondent authorities to forthwith release goods with Truck No.RJ-06-GC-4460 by quashing and setting aside the detention notice issued for such purpose; [C] During the admission, hearing and final disposal of the present petition, be pleased to grant an interim relief directing the respondent no.2 to release the goods with Truck No.RJ-06-GC-4460 detained/ seized in purported exercise of powers u/s.129 and 130 of the GST A....
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....2115.600 kg value at Rs. 2,24,253/-. In such circumstances, the truck came to be intercepted somewhere near Shamraji within the State of Gujarat and the goods were seized by the authorities. This Court is examining the larger issue as regards the provisions of Sections 129 and 130 of the G.S.T Act., 2017. However, we are inclined to pass an interim order of release of the goods and vehicle as the writ applicant has deposited an amount of Rs. 2,12,246/- towards the tax and penalty. In such circumstances, the authorities are directed to release the goods and the vehicle at the earliest. This order is passed subject to the final outcome of this writ application. Direct service is permitted qua the respondent No.2." 3. While issuing....
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....ce 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 penalty or upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) to Clause (1) of Section 129. Section 129(2) also provide....
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....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 ....
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....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 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 p....
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....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 time, there must be material based on which alone the authority could form its opinion in good faith that it has become nece....