JUDGMENT :

Harsha Devani, J.

1. Rule. Mr. Trupesh Kathiriya, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents.

2. By this petition under article 226 of the Constitution of India the petitioner has challenged the order dated 24.8.2019 passed by the second respondent in Form GST MOV-11 whereby he has ordered confiscation of the conveyance as well as the goods contained therein.

3. The petitioner is a transporter and conveyance bearing number GJ-04-AT-9932 belongs to the petitioner. The conveyance in question was intercepted by the second respondent on 6.8.2019 at 6.45 p.m. at Vagharol, Taluka Dantiwada. It appears that the person in charge of the conveyance was not in a position to produce the mandatory documents in the nature of invoice and e-way bill.

4. Vide an order dated 6.8.2019 issued in Form GST-MOV-02, the person in charge of the conveyance was directed to station the conveyance carrying goods at Vagharol at his risk and responsibility. Thereafter, a notice dated 21.8.2019 came to be issued in Form GST- MOV-10 for confiscation of the goods or conveyance and levy of penalty under section 130 of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as the CGST Act) read with the relevant provisions of other related statutes. In terms of the said notice, the petitioner was directed to appear before the second respondent on 28.8.2019 at 11 a.m. Thereafter, without waiting for the petitioner to appear before him, the second respondent vide order dated 24.8.2019 passed an order of confiscation under section 130 of the CGST Act in Form GST-MOV-11 computing the tax, penalty, fine in lieu of confiscation of goods and fine in lieu of confiscation of conveyance. Being aggrieved, the petitioner has filed the present petition.

5. Mr. Kavi Patel, learned advocate for Mr. D.K. Puj, learned advocate for the petitioner submitted that after the conveyance with the goods came to be intercepted and detained, petitioner has deposited the amount of fine and penalty on 5.9.2019. A copy of the payment receipt of CGST Act has been brought on record. It was submitted that while the notice in Form GST-MOV-10 called upon the petitioner to appear before the second respondent on 28.8.2019, the impugned order came to be passed on 24.8.2019 without affording any opportunity of hearing to the petitioner. Referring to the provisions of section 130 of the CGST Act it was submitted that sub-section (4) thereof provides that no order of confiscation of goods or conveyance or imposition of penalty shall be issued without giving the person an opportunity of being heard. It was submitted that therefore, the impugned order has been passed in contravention to the provisions of sub-section (4) of section 130 of the CGST Act. Hence, the petition requires to be allowed by granting the reliefs as prayed for therein.

6. On the other hand, Mr. Trupesh Kathiriya, learned Assistant Government Pleader, submitted that the person in charge of the conveyance was not in a position to produce either the invoice or the e-way bill. It was submitted that the impugned order has been passed after due notice to the petitioner and hence, there is no warrant for interference by this court. He, however, was not in a position to dispute the fact that while by the notice dated 21.8.2019, the petitioner was called upon to remain present before the second respondent on 28.8.2019, the impugned order had been passed on 24.8.2019.

7. From the facts as noted hereinabove it is evident that though by the notice dated 21.8.2019 issued in Form GST-MOV-10 for confiscation of goods or conveyance and levy of penalty under section 130 of the CGST Act, the petitioner was called upon to appear before the second respondent on 28.8.2019, the second respondent without waiting till that date, has in undue haste, passed the impugned order on 24.8.2019. While it appears that the petitioner has given a kabulatnama (declaration) to the effect that he i