C/SCA/12712/2020 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12712 of 2020 SHRI ANANT JIGNESH SHAH, PROPRIETOR OF M/S. NAKODA AND COMPANY Versus UNION OF INDIA,? THROUGH UNDER SECRETARY, & 2 other(s) Appearance: MR TUSHAR HEMANI, SENIOR COUNSEL with MS VAIBHAVI K PARIKH(3238) for Petitioner(s) No. 1 MR CHINTAN DAVE, ASSISTANT GOVERNMENT PLEADER for RESPONDENT NOS. 2 AND 3. CORAM:HONOURABLE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR. JUSTICE J.B.PARDIWALA Date : 06/11/2020 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: (a) to quash and set aside Order and Detention under Section 129(1) of CGST Act dated 13/09/2020 (Annexure- ) issued by Respondent No.2; (b) to quash and set aside Show Cause Notice under Section 130 of CGST Act dated 15/09/2020 (Annexure - A1 ) issued by Respondent No.2; (c) pending admission, hearing and final disposal of this petition, to stay implementation and operation of Order of Detention under Section 129(1) of CGST Act at Annexure- to this petition; (d) pending admission, hearing and final disposal of this petition, to stay implementation and operation of Show Cause Notice under Section 130 of CGST Act at Annexure- A1 to this petition; Page 1 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 C/SCA/12712/2020 ORDER (e) direct Respondent No.3 to release Conveyance of petitioner; (f) direct Respondent No.3 to release Goods worth Rs.35,74,155/- along with Conveyance; (g) any other and further relief deemed just and proper be granted in interest of justice; (h) to provide for cost of this petition. 2. It appears from materials on record that writ applicant is engaged in business of trading of pan masala and is registered under provisions of Central Goods and Services Tax Act, 2017 ( Act for short). writ applicant had placed order with one M/s. Atharva Enterprises, Ujjain, Madhya Pradesh for supply of pan masala amounting to Rs. 35,74,155/-. said goods were to be transported from Ujjain, Madhya Pradesh on 8 th September, 2020 in vehicle bearing No. MP-13-GA-9108 and were to be delivered at Ahmedabad, Gujarat. 3. It is not in dispute that E-way bill generated was valid for period between 08.09.2020 and 13.09.2020. On 12th September, 2020, vehicle carrying goods came to be intercepted by mobile squad of respondent No.2. On 13 th Page 2 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 C/SCA/12712/2020 ORDER September, 2020, respondent No.2 passed order of detention under Section 129(1) of Act in Form GST MOV-06. Thereafter, notice in Form GST MOV-10 dated 15th September, 2020 came to be issued. 4. Being dissatisfied with issue of notice in Form GST MOV-10 referred to above, writ applicant has come up with present writ application. 5. We have heard Mr. Tushar Hemani, learned Senior Counsel assisted by Ms. Vaibhavi K. Parikh, learned counsel for writ applicant and Mr. Chintan Dave, learned Assistant Government Pleader, appearing for respondent State. 6. show cause notice in Form GST MOVE-10 issued by State talks about following contraventions: For selling goods to trader Nakoda & Company, Ahmedabad, having office at Shahibag, Ahmedabad, Gujarat, having GSTIN No. 24BQDPS09883, trader Atharva Enterprise 17, Shriram Colony, Yantra Mahal Marg Ujjain, having GSTIN No. 23BKFPS2904B2ZM had generated E-way Bill No. 631216432684 on 08.09.2020. Thereafter, on 09.09.2020, they had gone to Ujjain by taking goods together with E-way bill Nos. 681216854838, 681216855819, 631216832772 etc. and had returned on 12.09.2020 by loading goods from Ujjain. At that time, tax bill dated 8.9.2020 was produced when vehicle was intercepted. On asking Page 3 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 C/SCA/12712/2020 ORDER as regards second round for said goods, it was stated that on 8.9.2020, they had loaded vegetables, which goods were unloaded by them at Ahmedabad and purchaser has given statement on letter pad that they have ordered goods of bill dated 8.9.2020 at present,which is caught by you. It has been stated that they have earlier not taken goods on said bill. On checking said vehicle, it has gone at Toll Tax on 9.9.2020 and again on 12.9.2020, it has arrived from Madhya Pradesh and evidence in that regard are produced and submissions are made by purchaser trader and as pan masala being sensitive commodity, submission of trader is not accepted. And second round is counted. Thus, in said case, as trader has generated E-way bill but has transported goods twice on very same bill, proceeding is initiated under Section 130 of Gujarat Goods and Services Tax Act and Rules. 7. We are of view that ground on which authority proposes to confiscate goods and vehicle is not tenable in law. show cause notice appears to have been issued on assumption that driver of vehicle might have indulged in past in contravention of provisions of Act and Rules made thereunder. It appears entire basis for issue of show cause notice is conjectures and surmises. 8. goods and vehicle can be detained under Section 129 of Act only if such goods are transported in contravention of provisions of Act or Rules made thereunder. We specifically Page 4 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 C/SCA/12712/2020 ORDER inquired with Mr. Dave, learned Assistant Government Pleader as to whether any provision of Act or Rules could be said to have been contravened with regard to transaction in question. Mr. Dave, with his usual fairness pointed out that when goods were in transit and detained, it cannot be said that there was any contravention of provisions of Act or Rules. However, according to Mr. Dave, authorities have grave suspicion that driver of vehicle might have entered Ahmedabad on same E-way bill and might have succeeded in getting out thereafter without payment of any tax. Thus, case of Mr. Dave, learned Assistant Government Pleader is one of evasion of tax for some transaction which is unknown. 9. show cause notice under Section 130 of Act cannot be issued on mere suspicion. There has to be some prima facie material on basis of which authority may arrive at satisfaction that goods are liable to be confiscated under Section 130 Page 5 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 C/SCA/12712/2020 ORDER of Act. 10. In such circumstances referred to above, we are left with no other option but to quash and set aside notice in Form GST MOV-10 dated 15 th September, 2020. It is hereby ordered to be quashed. We clarify that if there is any other inquiry to be made as regards any other transaction, it is open for authority to initiate and carry out such inquiry. With above, this writ application stands allowed. (VIKRAM NATH, CJ) (J. B. PARDIWALA, J) A. B. VAGHELA/A.M.PIRZADA Page 6 of 6 Downloaded on : Mon Feb 22 16:09:32 IST 2021 Anant Jignesh Shah v. Union of India