ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. H. J. Trivedi for the petitioner and learned Assistant Government Pleader Mr. Aditya Pathak for the respondent.

2. By filling this petition, under Article 226 of the Constitution, the petitioner has prayed to set aside notice dated 5.10.2019 (FORM GST MOV 10), which was for confiscation of goods or conveyance and levy of penalty under section 130 of the Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the Act’). It was also prayed to release the vehicle-truck bearing No. GJ-21-W-6977 alongwith the goods contained therein.

2.1 Order under section 130 of Act was passed subsequent to filling of the petition under section 130 of Act. The petitioner challenged the said order dated 5.10.2019 (FORM GST MOV 11) by amending the prayer clause.

3. Notice in the petition was issued on 14.10.2019. Notice as to interim relief was also issued making returnable on 16.10.2019. It appears that respondent No.2 issued notice dated 5.10.2019 to the petitioner calling upon the petitioner to remain present on 15.10.2019. As far as the aspect of detention of conveyance as well as goods lying in the conveyance was concerned, the petitioner had deposited the amount of tax and penalty.

3.1 As per order dated 18.10.2019, the court granted interim relief directing the second respondent to release the conveyance-truck bearing registration No. GJ-21-W-6977 together with the goods therein subject to final outcome of the petition. In was directed in the very order that the petitioner shall file undertaking before the court that if the petitioner did not finally succeed, he shall pay balance amount payable under the order of confiscation made section 130 of the Act without prejudice to his rights to challenge the said order of confiscation.

3.2 It appears that the notice was issued on 5.10.2019 by respondent No.2-the State Tax Officer asking the petitioner to remain present before him on 15.10.2019. It is the case of the petitioner that the petitioner had informed the respondent No.2 about the order dated 14.10.2019 passed by this court whereby the notice was issued and was made returnable. It is not in dispute that on the same day, however, that is on 15.10.2019, the respondent No.2 proceeded to pass order of confiscation of goods and conveyance and demanded tax, fine and penalty under section 130 of the Act. The petitioner pointed out that he had already deposited the amount of tax and penalty.

4. In view of the above factual scenario obtaining and the sequence of events and dates noticed, it transpires that the petitioner was called to remain present before respondent No.2 on 15.10.2019. The petitioner appeared and submitted about the pendency of the petition, however, respondent No.2 authority passed order dated 15.10.2019 under section 130 of the Act, which was on the same date. Whereby all proposals in GST MOV 10 were confirmed regarding levy of tax, fine etc..

5. Therefore, what becomes clear is that order dated 15.10.2019 under section 130 of the Act came to be passed without affording any opportunity to the petitioner. As noticed above, the petitioner was called to remain present and on the same date the order came to be passed. It amounted to breach of principles of natural justice resulting into denial of reasonable opportunity to the petitioner to defend in the proceedings.

5.1 On the aforesaid sole ground, order dated 15.10.2019 (FORM GST MOV 11) passed under section 130 of the CGST ACT is hereby set aside.

6. The proceedings are remanded to the competent authority of the respondents, which shall decide the subject matter afresh after giving opportunity to the petitioner to defend his case.

6.1 The amount of tax and penalty deposited by the petitioner shall remain subject to outcome of the proceedings before the competent authority. As per the undertaking filed by the petitioner as directed by the court, if the petitioner does not succeed finally, the petitioner will have to pay the balance amount payable under the order of confiscation under section 130 of the Act, however, the same shall be without prejudice to his rights to challenge the order before the higher forum.

6.2 It is clarified that this court has not gone into merits, nor has expressed any opinion on the merits of the case of the either side.

6.3 The competent authority of the respondent shall complete the proceedings rendering a fresh decision as above within a period of eight weeks from the date of receipt of copy of this order.

7. Special Civil Application is allowed to the aforesaid extent and in the aforesaid terms.