TaxTMI 
TaxTMI 
2022 (5) TMI 862
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....e writ-applicant us the seller and M/ s. Raj Khodal Metal, Jamnagar is the purchaser. Two consignments of the goods were dispatched to M/s. Raj Khodal Metal, Jamnagar in two trucks owned by the Jamnagar Transport company. Separate e-way bills were generated for the movement of the consignments. 3. On 08.04.2022, when the goods were in transit, both the conveyance came to be intercepted near Theba Chowkdi, Jamnagar by the State Tax Officer, Mobile Squad, Division-11 (ENF), Jamnagar. 4. The writ-applicant is here before this Court as he has been served with a show-cause notice in Form GST MOV-10 dated 11.04.2022 calling upon him to show cause as to why the goods should not be confiscated under Section-130 of the GST Act. 5. The principal argument of Mr. Nanavati is that even if the authority concerned thought fit to issue notice under Section- 130 of the Act in Form GST Mov-10, the authority could not have overlooked or ignored Sub-section (3) of Section-129 of the Act. The argument proceeds on the footing that in accordance with Subsection (3) of Section-129, the Proper Officer is obliged to issue a notice within seven days of detention or seizure specifyi....
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....der section 130(7) of the Act, the Proper officer will have to take and hold possession of the things confiscated subject to consequences as contemplated thereunder. For the foregoing, the writ petition is disposed of restoring the Show Cause Notice dated 25.08.2020 (Annexure- E) directing the respondent to decide, in accordance with law, on the proposed levy of tax, penalty and cess as proposed therein with reasonable opportunity of hearing to the petitioner, who shall have the liberty to seek provisional release of goods/conveyance as provided for under sub-clause (2) of Section 129 of the Act. The respondent is also directed to contemporaneously decide on the impugned Show Cause Notice dated 07.09.2020 (Annexure-A) in accordance with the provisions of Section 130 of the Act." 9. We shall definitely decide the larger issue raised in this writ application. However, we would like to know the exact amount payable by the writ-applicant in terms of Sub-section (3) of Section129. We are exploring the possibility of ordering provisional release of the goods on the condition that the writ-applicant shall deposit the entire amount towards penalty. There is some confusion....
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.... 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 application of mind and without any justifiable grounds or reasons to believe, the authorities may not be justified to straightway issue a notice of confiscation under Section 130 of the Act. For the purpose of issuing a notice of confiscation under Section 130 of the Act at the threshold, i.e,. at the stage of Section 129 of the Act itself, the case has to be of such a nature that on the face of the entire transaction, the authority concerned is convinced that the contravention was with a definite intent to evade payment of tax. ....
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....sed such powers having noticed that the writ applicant is involved in availment of fake input tax credit. He therefore submitted that the writ petition may not entertain writ petition at the stage of issuance of section 130 notice, more particularly, when the transaction of the writ applicant is found suspicious. He relied upon the reasons to believe drawn by the proper at the stage of MOV-10, produced at page no. 28 and submitted that there is cogent material available with the respondent authority to form opinion as regards evasion of tax and authority has rightly issued notice under section 130 of the Act, 2017. He therefore submitted that the writ applicant may be relegated to the respondent authority for adjudication under section 130 of the Act. He apprehended that once the goods and conveyance are provisionally released it would be difficult to confiscate the same even in case the proceedings under section 130 of the Act is concluded against the writ applicant. He therefore submitted that the writ applicant may be put to strict conditions to secure the interest of the revenue , if the Court considers for provisional release of the Goods and conveyance. 8. It appears from ....