C/SCA/7318/2019 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 7318 of 2019 M/S MAHALAXMI REXINE AND METAL TRADERS Versus STATE TAX OFFICER (2) Appearance: MR D K TRIVEDI(5283) for Petitioner(s) No. 1,2 MR.SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER(1) for Respondent(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 19/02/2020 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. Rule returnable forthwith. Mr.Soaham Joshi, learned Assistant Government Pleader waives service of notice of rule for and on behalf of respondents. 2. By this writ application, writ applicants have prayed for following relief(s): 8(A) Your Lordships may be pleased to admit this petition. (B) Your Lordships may be pleased to allow this petition. (C) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing respondent no.1 to immediately release transport vehicle (Truck No.TN 52 B 8335) along with goods loaded in it and hand it over to Page 1 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER driver of truck, from whose possession it was seized. (D) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ quashing and setting aside notice in Form GST MOV 10 annexed at Annexure D herein above and order in FOR GST MOV 11 annexed at Annexure 'H' herein above. (E) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in interest of justice in favour of petitioner. 3. This writ application is at instance of proprietary concern through its proprietor. writ applicant is engaged in business of trading in metal scrap. writ applicant is registered under provisions of Gujarat Goods & Service Tax Act 2017 (for short Act 2017 ). According to case of writ applicant, he had supplied goods from his registered premises situated at Jamnagar. said goods were transported in vehicle which is owned by writ applicant no.2 herein. writ applicant no.2 is also proprietary concern. 4. It is case of writ applicants that goods were accompanied by tax invoice, LR etc., however, E way Bill could not be produced at time of seizure of goods. failure on part of driver of conveyance in producing E way bill ultimately led to proceedings under Section 129 of Act, and thereafter, confiscation proceedings. 5. As on date, subject matter of challenge is Page 2 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER final order of confiscation passed by authority concerned in FORM GST MOV 11. 6. On 12.04.2019, Coordinate Bench of this Court passed following order: 1. Mr. D. K. Trivedi, learned advocate for petitioners inter alia submitted that initially petitioners were called for hearing in respect of notice under section 130 of Central Goods and Services Tax Act, 2017 read with relevant provision of other statutes on 5.4.2019. attention of court was invited to Annexure G to point out that petitioners had filed their reply dated 4.4.2019 which was duly received by authority on 5.4.2019. It was submitted that however, concerned authority was not available on that date, and hence, matter could not be heard. It was submitted that petitioners were told that hearing would take place on 8.4.2019, however, impugned order has been passed on 5.4.2019 in breach of principles of natural justice. 2. Having regard to submissions advanced by learned advocate for petitioners, Issue Notice and Notice as to interim relief, returnable on 15th April, 2019. On returnable date, respondents shall state as to on what date, opportunity of hearing in connection with notice under section 130 of CGST Act was granted to petitioners. Direct service is permitted today. 7. Thereafter, on 18.04.2019, Coordinate Bench passed by following order: 1. Leave to amend cause title by impleading State of Gujarat, through Commissioner of Commercial Tax, Rajya Kar Bhavan, Ashram Road, Ahmedabad as second respondent. 2.On 12.4.2019, this court passed order in following terms: Page 3 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER 1. Mr. D. K. Trivedi, learned advocate for petitioners inter alia submitted that initially petitioners were called for hearing in respect of notice under section 130 of Central Goods and Services Tax Act, 2017 read with relevant provision of other statutes on 5.4.2019. attention of court was invited to Annexure G to point out that petitioners had filed their reply dated 4.4.2019 which was duly received by authority on 5.4.2019. It was submitted that however, concerned authority was not available on that date, and hence, matter could not be heard. It was submitted that petitioners were told that hearing would take place on 8.4.2019, however, impugned order has been passed on 5.4.2019 in breach of principles of natural justice. 2. Having regard to submissions advanced by learned advocate for petitioners, Issue Notice and Notice as to interim relief, returnable on 15th April, 2019. On returnable date, respondents shall state as to on what date, opportunity of hearing in connection with notice under section 130 of CGST Act was granted to petitioners. Direct service is permitted today. 3.Heard Mr. D. K. Trivedi, learned advocate for petitioner and Mr. Utkarsh Sharma, learned Assistant Government Pleader for respondents. 4.A perusal of original file of concerned officer in relation to proceeding which has culminated into order of confiscation under section 130 of Central Goods and Services Tax Act / Gujarat Goods and Services Tax Act, 2017 reveals that noting sheet is totally blank. There is nothing on record to indicate relevant dates on which proceedings took place. Considering fact that this is file maintained by Government authority, it is difficult to understand as to how there are no notings with regard to proceedings undertaken by concerned officer. Under circumstances, stand over to 24th April, 2019 to enable respondents to file affidavit in reply. Page 4 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER 5. Notice be issued to newly added respondent, returnable on 24th April, 2019. On returnable date, second respondent shall inform this court about as to what is practice of making notings of proceedings conducted by State Tax Officers. Direct Service is permitted today. copy of this order be furnished to learned Assistant Government Pleader for doing needful in matter. 8. Lastly, on 09.05.2019, Coordinate Bench of this Court passed following order: 1. Heard Mr. D.K. Trivedi, learned advocate for petitioners and Mr. Utkarsh Sharma, learned Assistant Government Pleader for respondents. 2.In this case, petitioners have already paid amounts of tax and penalty as computed by respondents. Under circumstances, respondents shall release detained goods as well as conveyance, subject to each of petitioners filing solemn undertaking before this court to effect that petitioners shall make good deficit liability, if any, as may be determined finally by authorities for goods as well as for vehicle/s subject to petitioners' right to challenge same in accordance with law. For release of goods and vehicle/s, petitioners shall also submit before concerned authority proof of payment of above referred amounts and also copy of solemn undertaking filed in this court as well as documents, namely, PAN card and Aadhar card / Election card for identification of petitioners and addresses of petitioners. 3.Stand over to 19th June, 2019. Direct service is permitted. 9. We take notice from order passed by Coordinate Bench dated 18.04.2019 that original file of concerned officer was also called for purpose of perusal. On perusal of original file, Page 5 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER Coordinate Bench noticed that noting sheet was completely blank. Coordinate Bench further noticed that there was nothing on record to indicate relevant date on which proceedings took place. 7. Be that as it may, short point today for our consideration is whether writ applicant could be said to have been given reasonable opportunity of hearing by authority concerned before passing final order of confiscation in Form MOV 11. 8. Our attention has been drawn to impugned notice more particularly, Page No.30 of paper book. It is evident from Paragraph No.7 therein that writ applicant was directed to appear before authority concerned on 05.04.2019 at 11.00 a.m. Despite same, impugned order came to be passed on very same day i.e. 05.04.2019 on which writ applicant was supposed to remain present for purpose of hearing. On this short ground alone, we are inclined to quash impugned order of confiscation passed by authority concerned in Form GST MOV 11. 9. In result, this writ application succeeds and is hereby allowed. impugned order in Form GST 11 is hereby quashed and set aside. matter is remitted to respondent no.1 for fresh adjudication. respondent no.1 shall issue notice to writ applicant for purpose of giving opportunity of hearing. On date fixed by Page 6 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 C/SCA/7318/2019 ORDER respondent no.1, writ applicants shall remain present and make good his case. 10. With above, this writ application stands disposed of. Let this exercise be completed within period of four weeks from date of receipt of writ of this order. Direct service is permitted. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) GIRISH Page 7 of 7 Downloaded on : Fri Jun 18 11:08:17 IST 2021 Mahalaxmi Rexine and Metal Traders v. State Tax Officer (2)