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2023 DIGILAW 247 (KAR)

Nandish v. State of Karnataka

2023-02-09

B M SHYAM PRASAD

body2023
ORDER : B M Shyam Prasad, J. The petitioner, whose vehicle bearing registration No.KA-01-AA-3882 is confiscated under the provisions of Section 130 of the Karnataka Goods and Services Tax Act, 2007 [for short, 'KGST Act'], has called such order, which is dated 19.12.2020, in question while also seeking, as an alternative prayer, a direction to the third respondent to consider the rectification application filed under Section 161 of the KGST Act and for release of the vehicle. 2. Sri. Govindaraya Kamath, the learned counsel for the petitioner, while arguing in support of the petition, submits that the petitioner has filed the rectification application dated 18.11.2022 essentially on the ground that there is error apparent on the face of the record as contemplated under Section 161 of the KGST Act because the confiscation of the vehicle is notwithstanding the confiscation of goods. In similar circumstances where the owners of the confiscated vehicle have approached this Court contending inter alia that they are not in connivance with the transporter and as such, their vehicle cannot be confiscated, this Court has granted liberty to the owners to file affidavit with directions to the concerned respondents to consider the question of connivance in the light of the affidavit filed and to take appropriate action. In this regard, Sri Govindaraya Kamath relies upon the orders of this Court in different proceedings including in the writ petition in W.P. No.4997/2022 which is disposed of on 13.01.2023. 3. It must be recorded, at this stage, that it is obvious that the petitioner in the present proceedings, does not insist on the challenge to the confiscation order and would rather pursue the application for rectification with the respondents deciding on the questions of connivance. 4. Sri. K Hemakumar, the learned Additional Government Advocate, who is called upon to accept notice for the respondents, submits that the petitioner's rectification application is not considered because it is filed in respect of the vehicle bearing No.KA-02-D-8148 and the present proceedings relate to the vehicle as first mentioned above. Sri. K Hemakumar further submits that in cases where this Court has permitted the owners to file affidavit to demonstrate that there is no connivance, bald affidavits are filed and neither the owners nor their representatives appear in person and as such, effective enquiry is not possible. Sri. K Hemakumar further submits that in cases where this Court has permitted the owners to file affidavit to demonstrate that there is no connivance, bald affidavits are filed and neither the owners nor their representatives appear in person and as such, effective enquiry is not possible. If this Court is persuaded to reserve similar liberty to the petitioner with a direction to the third respondent to consider the petitioner's case that the vehicle should not be confiscated because the petitioner is not in connivance with the transporter, this Court may observe that if required and summoned, the petitioner or their duly authorized representative must appear before the third respondent and participate in the enquiry making a full disclosure for effective and considered decision. 5. In rejoinder, Sri. Govindaraya Kamath points out that indeed there is error in mentioning the vehicle number in the rectification application dated 18.11.2022 but that is only in some parts of the application, but in paragraph-3 of this application, the vehicle number is correctly mentioned. On Sri. K Hemakumar's submissions for directions to the petitioner to participate in the enquiry and furnish all such materials as may be necessary to ascertain connivance with the transporter, Sri. Govindaraya Kamath submits that the petitioner would indeed participate in the enquiry if there is summons and reasonable opportunity to appear before the third respondent. 6. It emerges from these submissions that this Court will have to decide on whether the third respondent must be directed to consider the petitioner's application dated 18.11.2022 notwithstanding certain typographical errors, and whether the petitioner must be reserved with liberty to file affidavit to establish his case that he has not connived with the transporter and therefore there cannot be confiscation of the subject vehicle. If the rectification application is considered and adjudicated, the question of considering connivance may not survive. However, for complete adjudication, the respondents must consider the question of connivance so that the petitioner can pursue all grounds for complete adjudication. Further, the petitioner, who undoubtedly will be enjoined with the onus of placing on record all materials to demonstrate lack of connivance, must not only file affidavit with necessary details but must also participate in the enquiry with the respondents providing due and reasonable opportunity. Further, the petitioner, who undoubtedly will be enjoined with the onus of placing on record all materials to demonstrate lack of connivance, must not only file affidavit with necessary details but must also participate in the enquiry with the respondents providing due and reasonable opportunity. Therefore, the following: ORDER [a] The petition stands disposed of, directing the third respondent to simultaneously adjudicate on the petitioner's rectification application dated 18.11.2022 notwithstanding the errors in mentioning the vehicle number in certain places in the application. The third respondent shall also decide on the question of connivance between the petitioner and the concerned transporter, and the petitioner to facilitate such adjudication, shall file affidavit with all the necessary details. [b] The petitioner as part of enquiry that should precede adjudication on the aforesaid question by the third respondent, is directed to appear before the said respondent without further notice on 01.03.2023. [c] It would be needless to observe that this Court has not commented on the merits of the petitioner's case for either rectification or on the question of connivance and it must be considered by the third respondent after due opportunity strictly in accordance with law.