1 We have heard Shri Manasvi Thapar, learned counsel for the writ-petitioner and Shri Chintan Dave, learned Assistant Government Pleader appearing for the State respondent.
2 The present petition under Article 226 of the Constitution of India has been preferred assailing the correctness of the detention order dated 05.01.2020 passed under Section 129(1) of the Central Goods and Services Act, 2017 (hereinafter referred to as, `GST Act’), the detention / confiscation notice dated 16.01.2020 in Form GST MOV-10 and lastly the order of confiscation dated 16.03.2020 in Form GST MOV-11. Further prayer has been made to release the conveyance (truck) bearing registration No.RJ-19-GG-4057 along with the goods contained therein.
3 The writ petitioner M/s. Lakshy Logistics is a proprietorship firm engaged in the business of transportation registered in the State of Rajasthan both under Central and State Goods Service Tax Act with the appropriate authorities. The petitioner’s vehicle bearing registration No.RJ-19-GG-4057 was hired by Rifty Vinimay Enterprises for transportation of goods. The vehicle was detained and upon certain discrepancies and deficiencies being noticed, the proceedings were initiated for detention and confiscation under the GST Act.
4 One of the arguments advanced on behalf of the petitioner is to the effect that the petitioner M/s. Lakshay Logistics was never served with any notice before the order of confiscation was passed on 16.03.2020 in Form MOV-11. Considering the said argument, learned Assistant Government Pleader was required vide order dated 18.09.2020 to take appropriate instructions in the matter.
The order dated 18.09.2020 is reproduced below:
“1 We have heard Mr. Manasvi Thapar, the learned counsel appearing for the writ applicant.
2 Mr. Thapar, the learned counsel submitted that he is the registered owner of the truck in question which has been confiscated by virtue of the order passed in the Form GST-MOV-11 under Section 130 of the Act, 2017. However, his client i.e. the writ applicant being the owner was not served with the show cause notice in Form GST-MOV-10. He would further submit that his client had no opportunity to appear before the authority in the confiscation proceedings.
3 Mr. Dave, the learned AGP is requested to take appropriate instructions in the matter and revert on the next date. Post the matter on 14.10.2020.”
5 Today, when the matter was taken up, Mr. Chintan Dave, learned Assistant Government Pleader appearing for the State produced before us a copy of the Form GST MOV-10 dated 16.01.2020 and submitted that it was served upon the petitioner. We have perused the said notice photocopy of which is placed on record. The perusal of the said notice indicates that it is addressed to Rifty Vinimay Enterprises, Ahmedabad. There is no mention of the petitioner M/s. Lakshay Logistics, which is the firm registered in Rajasthan and not Ahmedabad and even otherwise Rifty Vinimay Enterprises was the consignor and not the transporter or the owner of the vehicle. The order dated 16.03.2020 of confiscation not only confiscates the goods but also the conveyance.
6 The question is whether the transporter or the owner of the conveyance has been served with the notice or not, if not, whether it was mandatory or not. We may record here that Mr. Dave, learned Assistant Government Pleader, apart from the notice dated 16.01.2020 has not been able to produce or make a statement with regard to sending the notice and its service on the petitioner M/s. Lakshay Logistics.
7 Section 130 of the GST Act, provides for confiscation of goods or conveyance under given circumstances. Subsection (4) of Section 130 of the GST Act specifically provides that no order for confiscation of goods or conveyance or for imposition of penalty would be issued without giving the person an opportunity of being heard. The person in the said context would be the person interested in the goods as also the conveyance.
Therefore, opportunity of being heard is to be given to both the owner of the goods as also the owner of the conveyance. In the present case, we do not find any notice affording opportunity of hearing to the owner of the conveyance. As such the impugned order of confiscation would be in violation of Section 130(4) of the GST Act. The order of confiscation would be without affording due opportunity of hearing. The impugned order as such cannot be sustained as the same has serious civil and financial consequences.
8 Accordingly, this petition is allowed. The order of confiscation dated 16.03.2020 (Annexure-L to the petition) is hereby quashed. The matter is remanded to the competent authority to pass a fresh order strictly in accordance with law after affording opportunity of hearing to the parties concerned.
9 We make it clear that we have not gone into the validity of the notice or the detention order and the petitioner would be free to take all objections in response to the show cause notice. Further, the petitioner is expected to cooperate in the proceedings.