The petitioner has approached this Court aggrieved by Exts.P4 and P4

(a) orders whereby goods that were being transported at its instance, and the vehicles in which they were being transported, were confiscated under Section 130 of the Goods and Service Tax Act, (‘the GST Act’ for short). In the writ petition, it is the case of the petitioner that it is engaged in the business of Iron and steel ingots, and on 22.9.2020 it had raised two invoices bearing Nos.451 and 452 on a consignee in Kanjikode, for the supply of 20080 Kgs and 19820 Kgs respectively of MS Billets. It had also raised e-way bills to cover the transportation of the said consignment, at 4:14 PM and 4:17 PM respectively on 22.9.2020, as evidenced by Exts.P2 and P2(a) documents produced along with the writ petition. Although the e-way bills were raised around 4:00 PM on 22.09.2020, when the petitioner contacted the transporter for obtaining vehicles for transportation of the goods to Kanjikode, the transporter responded by stating that the vehicles could be made available only by 3:00 AM on the next day, namely 23.9.2020. According to the petitioner, after the vehicles came to the premises, they were duly loaded with the consignment, and the transportation commenced shortly thereafter by 3:00AM on 23.09.2020. It is its case that, at about 6:30 AM on 23.9.2020, the vehicles were intercepted by the 1st respondent at Kanjikode, and the petitioner was served with Exts.P3 and P3(a) notices under Form GST MOV-10, proposing a confiscation of the goods and the vehicle. In the notice issued to the petitioner, the petitioner was afforded a hearing on 24.09.2020, in connection with the proposal for confiscation. However, even before that date, on 23.09.2020 itself, the 1st respondent took a statement from the drivers of the vehicle, as also the manager of the petitioner, who was summoned to Kanjikode by the 1 st respondent for the said purpose. Presumably, acting on the basis of the statement obtained from the drivers of the vehicle and the manager of the petitioner, the 1st respondent thereafter proceeded to pass Exts.P4 and P4(a) confiscation orders under Section 130 of the GST Act. In the writ petition, the petitioner impugns Exts.P4 and P4(a) orders inter alia on the contention that it did not get an adequate opportunity to file objections to Exts.P3 and P3(a) notices and further, that the order passed in Form GST MOV-11 does not contain any reasons to presume that there was an application of mind by the 1st respondent, through a consideration of the explanation/objections raised by the petitioner, while passing the orders impugned in the writ petition.

2. A statement has been filed on behalf of the respondent pursuant to the directions issued from this Court, wherein, it is stated that the respondent had tracked the movement of the vehicles used by the petitioner for transportation of the consignments covered by invoice numbers 451 and 452 as aforementioned. The details of the vehicles gathered from the automatic number plate recorder cameras installed at Walayar showed that the vehicles had passed through the check post towards Coimbatore on the evening of 22.9.2020 and had thereafter once again crossed the check post, heading in the opposite direction, on the morning of 23.09.2020. The inference drawn by the respondents from the said data obtained from the cameras installed at Walayar is that the vehicles in question were used for multiple transportation under cover of the same transport document issued by the petitioner in the instant case. It is further stated that the respondent had duly complied with the procedure of issuing the necessary notices, initially in terms of Section 129 of the GST Act and later under Section 130 of the GST Act, and it is only after recording the statements of the drivers of the vehicle and the manager of the petitioner that the orders of confiscation were passed in Form GST MOV-11 as evidenced by Exts.P4 and P4(a) documents that are impugned in the writ petition. It further stated that in as much as provisions of Section 130 of the GST Act contemplate only that a reasonable opportunity of hearing should be given to the person against whom proceedings are initiated for confiscation of goods/vehicle, and in the instant case an opportunity of hearing was given to the drivers of the vehicle as also to the manager of the petitioner, the procedural requirements stipulated under Section 130 of the GST Act have to be taken as complied with, and hence there was no case for holding the impugned orders to be vitiated on account of an alleged non-compliance with the rules of natural justice.

3. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find from the perusal of Exts.P4 and P4(a) orders that are impugned in the writ petition that, while it may be a fact that the drivers of the vehicle and the manager of the petitioner were heard, in the sense that statements were taken from them on 23.09.2020, the impugned orders passed do not reflect a consideration of the objections/ explanation given by the said person in response to the notices issued to them in Form GST MOV-10 ( Exts.P3 and P3(a)). In my view, when a notice proposing confiscation is issued to an assessee, and an opportunity of hearing mandated by the statute before passing an order of confiscation, then the principles of fairness would mandate that the assessee be given an adequate opportunity to the respond to the allegations raised against him through the notices proposing confiscation. Thereafter, the objections/ explanation given by the assessee have to be considered by the adjudicating authority, and a reasoned order passed by him, reflecting a consideration of the said objections. As matter of fact, the statutory format for passing an order of confiscation under Section 130, namely Form GST MOV-10, clearly contains at Paragraph 5 thereof, a column for stating the reasons that weighed with the adjudicating authority for overruling the objection/ explanation furnished by the assessee. In the instant case, the learned Government Pleader fairly conceded that there was no statement of reasons that accompanied Exts.P4 and P4(a) orders, but all that the adjudicating authority had done was to enclose the separate sheets that had accompanied the notices issued in Form GST MOV-10 (Exts.P3 and P3(a)) to the assessee. In fact paragraph 2 of Form GST MOV-11 contemplates the separate enclosure of the contents of the notice issued in Form GST MOV-10 along with the order that is to be served on the assessee in Form GST MOV-11. The said requirement is over and above the requirement to give reasons to support the demand in the order of confiscation passed in Form GST MOV-11.

5. In as much as it is not in dispute that the reasons that weighed with the adjudicating authority while passing the impugned orders of confiscation were not enclosed with the said orders, I am of the view that Exts.P4 and P4(a) orders have to be quashed on the ground that they do not reflect an application of mind by the adjudicating authority on the objection/ explanation of the assessee against the proposal for confiscation. As is well settled in law, the absence of reasons by an adjudicating authority in the order passed by him would suggest a non application of mind by the adjudicating authority and the presumption to be drawn by the reviewing court is that the adjudicating authority did not have any reason to give. In reaching the said conclusion, I am guided by the judgment of the Supreme Court in Kranti Associates (P) Lts.V. Masood Ahmed Khan [(2010) 9 SCC 496] as also the observations of the Gujarat High Court in Sitaram roadways (URP) V. State of Gujarat [(2020) 76 GSTR 51(GUJ)] and Synergy Fertichem (P) Ltd. V. State of Gujarat [(2020) 76 GSTR 81 (GUJ)].

6. The upshot of the aforesaid discussion is that Exts.P4 and P4(a) orders shall stand quashed and the matter is remanded to the adjudicating authority for a reconsideration of the matter and to pass fresh orders after hearing the petitioner. To enable the 1 st respondent to do so, I direct the petitioner to appear before the 1st respondent at his office on 11:00 AM on 19.10.2020. I also make it clear that at the hearing before the 1st respondent, it would be open to the petitioner to produce material to substantiate his contentions on merits and the 1 st respondent shall pass fresh orders as directed within a week thereafter.

This writ petition is disposed as above.