Heard both sides.

2. The petitioner has claimed the following reliefs in the instant petition:-

” a) issue a writ of certiorari or any other appropriate writ/order/direction in the nature of Certiorari and thereby be pleased to quash and set aside the confiscation of goods and release such goods to the petitioner

b) issue a writ of certiorari or any other appropriate writ/order/direction in the nature of Certiorari and thereby be pleased to quash and set aside the Adjudication Order No.108/2020-2021.”

3. Learned counsel appearing for the petitioner drew my attention to Ext.P2 notice and argued that the respondent department has not followed the provisions of Section 129 of the Central Goods and Services Tax Act, 2017. He contended that Ext.P2 notice reflects that the goods viz-a-viz jewellery items were seized and detained by the respondent authorities and as such, the respondent authority was duty bound to issue notice as envisaged under Section 129(3) of the GST Act, specifying the tax and penalty payable and then to proceed to pass the order after hearing the petitioner.

4. Learned counsel appearing for the petitioner further argued that in case of the adverse order, if any, the respondent authority was duty bound to grant time of 14 days to the petitioner to pay the amount of tax and penalty as per the provisions under Section 129(6) of the GST Act. In submission of the learned counsel appearing for the petitioner, in order to impose huge amount of the tax and penalty apart from confiscation of goods, the respondent authority resorted to the provisions of Section 130 of the GST Act and there is no basis for coming to prima facie conclusion that there was an attempt on the part of the petitioner to evade payment of tax under the GST Act. He argued that seized articles were in fact, samples meant for showing the same to the wholesalers for the purpose of soliciting business. According to the petitioner, Ext.P5 impugned order, no where points out as to which provision of the GST Act were contravened by the petitioner.

Therefore, according to the learned counsel for the petitioner, the petition needs to be admitted with interim stay as prayed.

5. Learned Government Pleader appearing for the respondent department opposed the petition by contending that Sections 129 and 130 of the GST Act operates in totally different fields. Mens rea is an essential part for an action under Section 130 of the GST Act whereas the action under Section 129 of the GST Act is contemplated only if there is contravention of the provisions of the said Act or Rules while the goods were in transit.

Irregularity in transport of goods by contravening the provisions of the said Act and Rules result in action under Section 129 of the GST Act. Therefore, according to the learned Government Pleader, the petition is devoid of merit and the same is liable to be dismissed.

6. I have considered the submissions so advanced and perused the materials placed before me.

7. Perusal of section 129 of the GST Act, 2017 makes it clear that the authorities under the Act are vested with powers to detain or seize and after detention or seizure to proceed further in the matter for assessing the tax and penalty, in case if it is found that the person transporting the goods or storing the goods while they are in transit indulge in contravention of the provisions of the GST Act or the Rules made thereunder. However, Section 130 of the GST Act deals with mens rea of a person who intends to avoid payment of taxes. If any person supplies or misuses any goods in contravention of the provisions of the GST Act or Rules with intend to evade payment of taxes or fails to account for any goods, on which he is liable to pay tax, the provisions of Section 130 of the GST Act applies. Similarly, supplying the goods liable for tax without application for registration as well as contravention of the provisions of the GST Act and Rules with intent to evade payment of tax can also result in action under Section 130 of the GST Act, 2017. Thus act or omission with intention to avoid payment of tax is sine quo non for the purpose of action under Section 130 of the GST Act.

8. On this backdrop, notice issued under section 130 of the GST Act (Ext.P2) makes it clear that, officers of the respondent department during shadow operation noticed two persons entering and coming out of the jewellery shop. The bags held by them were checked and those were found to be containing gold ornaments weighing 2270.13 grams including stone weight. Ext.P2 notice makes it clear that goods were not accompanied by any documents showing or reflecting payment of tax on them as per the provisions of the GST Act, 2017. What was found was ‘authority letters‘ authorising those persons to carry gold ornaments of 130 grams, 300 grams and 500 grams. Those authority letters were not having source of law. On these facts, the respondent authority came to the conclusion that the goods i.e., gold jewellery were being supplied and received in contravention of the provisions of the GST Act and Rules made thereunder, with intend to avoid payment of tax and accordingly, notice under Section 130 of the GST Act came to be issued.

9. The impugned order Ext.P5 shows that petitioner filed reply to that notice on 15.12.2020 and he was heard in pursuant to that notice. By Ext.P5 impugned order, the Sales Tax Officer (Intelligence) came to the conclusion that detained goods are liable for confiscation in pursuant to the provisions of Section 130 of the GST Act.

10. In the backdrop of these facts, I am of the considered opinion that the respondent Department has rightly proceeded in the matter by taking notice action under Section 130 of the GST Act,2017 as gold jewellery weighing more than 2 kilograms was found in possession of the petitioner and another person who were entering the jewellery shops and coming out of such shops. The material reflected in the show cause notice reflects mens rea on the part of petitioner.

11. The act on the part of the petitioner while carrying the gold jewelelery in huge quantity and visiting the jewellery shops as reflected from the notice action certainly gives an indication that there was intention to evade payment of taxes as required by the GST Act of 2017. Neither before the authority under the GST Act nor before this Court, the petitioner has filed any evidence to show that the goods in the form of gold jewellery weighing more than two kilograms possessed by them were held by them under any authority of law after making payment of taxes as per GST Act. No documents evidencing payment of tax as contemplated under the GST Act of 2017 are shown by the petitioner even before this Court.

The writ petition, as such, is totally devoid of merits and the same is accordingly dismissed.