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Patna High Court

M/S Kishan Cement StoresversusThe State of Bihar

Decided
Disposal
DISMISSED

Holding

The writ petition is dismissed as the petitioner failed to exhaust the statutory appeal remedy and no violation of natural‑justice or jurisdictional error is shown.

Summary

M/s Kishan Cement Stores filed a writ petition seeking to quash a summary show‑cause notice and penalty imposed under the CGST/BGST Act, alleging denial of a hearing in violation of Section 129(4) and claiming the goods were covered by a valid tax invoice and an expired e‑way bill. The State produced a release order (Form GST MOV‑05) dated 13‑10‑2025 showing that the petitioner had paid the tax and penalty and that the goods were released. The Court held that under Section 129(5) the payment of the penalty concluded the proceedings, and that the petitioner had failed to file an appeal within the three‑month period prescribed by Section 107. Since no breach of natural‑justice principles or jurisdictional error was demonstrated, the writ was deemed premature and inadmissible. Consequently, the petition was dismissed.

Issues considered

  • Whether the summary show‑cause notice and penalty order can be set aside for violation of natural‑justice principles under Section 129(4) of the CGST/BGST Act.
  • Whether the release order and payment of penalty on 13‑10‑2025 concluded the proceedings under Section 129(5) of the CGST/BGST Act.
  • Whether the petitioner is barred from filing a writ because he did not prefer an appeal within the three‑month period prescribed by Section 107 of the CGST/BGST Act.

Legislation cited

Subjects

  • GST
  • penalty
  • show cause notice
  • natural justice
  • writ of certiorari
  • appeal
  • Section 129
  • Section 107
  • release order
  • tax compliance

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.1982 of 2026
                 ======================================================
                 M/S Kishan Cement Stores having GSTIN- 10BNCPK1349A1ZW
                 proprietary concern having its office at - village- Sikandra, Police Station -
                 Sikandra, District- Jamui, Bihar, 811315 through its proprietor Ranjit Kumar,
                 Gender- Male, aged about 51 years, Son of Shri Ayodhya Mahto, Resident of
                 village- Sikandra, Post- Sikandara, Police Station- Sikandra, District- Jamui,
                 Bihar- 811315.

                                                                               ... ... Petitioner
                                                   Versus
           1.    The State of Bihar through The Principal Secretary, State Tax, Bihar, Patna
                 having its Office at Kar Bhawan, Patna.
           2.    The Principal Secretary Cum Commissioner, Department of State Taxes,
                 Government of Bihar, Patna.
           3.    The Joint Commissioner of State Tax, Jamui Circle, Jamui.
           4.    The Deputy Commissioner of State Tax, Jamui Circle, Jamui, Bihar.

                                                           ... ... Respondents
                 ======================================================
                 Appearance :
                 For the Petitioner     :      Mr. Manish Kumar, Advocate
                 For the State          :      Mr. Vikash Kumar, Standing Counsel (11)
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
                         and
                         HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

2   11-05-2026                  Heard learned counsel for the petitioner and learned

                   SC-11 for the State.

                                2. The petitioner in this writ application is seeking the

                   following reliefs:-

                                       “i) For issuing of a writ of certiorari or any
                                       other appropriate writ quashing/ setting aside
                                       the Summary of Show cause Notice for Penalty
                                       in the form of DRC-01 vide Reference No-
                                       ZD101025012053I dated 13.10.2025 and Show
                                       Cause Notice in FORM GST MOV-07 vide
Patna High Court CWJC No.1982 of 2026(2) dt.11-05-2026
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                               Process No: Nil dated 13.10.2025 (as contained
                               in Annexure-P1D and Annexure-P1E) which
                               was issued by the Respondent No. -4 without
                               affording any opportunity of hearing in violation
                               of S 129(4) BGST/CGST Act, 2017 which
                               render the entire proceedings of Respondent
                               No- 4 violative of principles of natural justice
                               and thus liable to be set aside.
                               ii) For issuing a writ of certiorari or any other
                               appropriate writ quashing/ setting aside the
                               Summary of Show cause Notice for Penalty in
                               the form of DRC-01 vide Reference No-
                               ZD101025012053I dated 13.10.2025 and Show
                               Cause Notice in FORM GST MOV-07 vide
                               Process No: Nil dated 13.10.2025 (as contained
                               in Annexure-P1D and Annexure-P1E) issued by
                               the Respondent No-4 were not lawful as goods
                               detained by him was backed by valid tax paid
                               invoice and E-way bill which had just expired
                               during transportation due to some technical snag
                               in the vehicle and there was no intention to
                               evade tax by the petitioner and e way bill had
                               just expired and this e way bill could not be
                               extended in time as the vehicle was on the way
                               to destination and not taking notice of the reply
                               submitted by the petitioner to the show cause
                               notice renders the entire proceedings of
                               Respondent No-4 get invalid and thus liable to
                               be set aside.
                               iii) For issuance of appropriate direction or any
                               other appropriate writ to the Respondents to
                               refund the penalty amount of Rs.2,00,090.00/-
                               paid under CGST and BGST Act, 2017 along
Patna High Court CWJC No.1982 of 2026(2) dt.11-05-2026
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                               with interest which was deposited under
                               duress as goods in transportation was urgently
                               needed for business purpose and goods in
                               transportation was covered by tax invoice and E
                               Way Bill.
                               iv) For granting any other relief (s) to which the
                               petitioner is otherwise found entitled to in
                               accordance with law.”


                      3. It is the case of the petitioner that he was compelled

          to pay the penalty amount of Rs.2,00,090/- under the Central

          Goods and Services Tax/Bihar Goods and Services Tax Act,

          2017 (hereinafter referred to as the ‘CGST/BGST Act, 2017’)

          along with interest deposited under duress as the goods in

          transportation was urgently needed for business purpose. This

          Court has found that while making that payment, the petitioner

          had not raised any protest.

                      4. Learned SC-11 representing the State has drawn the

          attention of this Court towards Form GST MOV-05 dated

          13.10.2025 (Annexure ‘P3A’) which is a release order.

          Annexure ‘P3A’ dated 13.10.2025 reads as under:-

                                            “FORM GST MOV-05
                        OFFICE OF DEPUTY COMMISSIONER OF STATE TAX
                               JURISDICTION: JAMUI, STATE/UT: BIHAR
                                               ADDRESS: -NA-


                                             RELEASE ORDER
                      No.: ZD1010250120695                     Date: 13/10/2025
Patna High Court CWJC No.1982 of 2026(2) dt.11-05-2026
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                      Case ID: AD1010250022254


                      To,
                      RANJIT KUMAR
                      10BNCPK1349A1ZW
                      0, sikandra, sikandra, Jamui, Bihar, 811315


                       Ref: FORM GST MOV-02 No: ZD101025011993X dated:
                                                  13/10/2025
                      The goods conveyance bearing No. JH15AC7947 carrying
                      goods was inspected by me SUNIL KUMAR, Deputy
                      Commissioner of State Tax on 11/10/2025 and after
                      inspection, an order of detention was issued in FORM
                      GST MOV-06 on 13/10/2025 and a notice in FORM GST
                      MOV-07 was served on the Person-in-Charge of the
                      conveyance on 13/10/2025. The owner or Person-in-
                      Charge of the conveyance has-
                      a. come forward and made the payment of tax and penalty
                      as proposed and proceedings is drawn in this regard.


                      In view of the above, the goods and conveyance are hereby
                      released on 13/10/2025 at 19:27 HRS in good condition.
                                                                         Signature
                                                               Name: SUNIL KUMAR
                                               Designation: Deputy Commissioner of
                                                                          State Tax
                      Enclosure/s:
                      MOV-05
                                       ACKNOWLEDGEMENT:
                      I hereby duly declare that I have received a copy of the
                      above order.
                                        Signature of the Owner/Person-in-Charge”


                      5. On the strength of the aforesaid release order

          (Annexure ‘P3A’), learned SC-11 submits that by virtue of sub-
Patna High Court CWJC No.1982 of 2026(2) dt.11-05-2026
                                            5/6




          section (5) of Section 129 of the CGST Act, 2017, on payment

          of the amount, all proceedings in respect of the notice specified

          in sub-section (3) shall be deemed to be concluded. In his

          submissions, in this case the proceeding stood concluded on

          13.10.2025. Almost after four months from the date of the

          conclusion of the proceeding, the petitioner has filed this writ

          application. It is submitted that if at all the petitioner was

          aggrieved by the order imposing penalty, he could have

          preferred an appeal within the prescribed period of three months

          but having failed to do so, he has chosen to file this writ

          application. It is his submission that such writ applications are

          required to be discouraged.

                      6. Having regard to the entire facts and circumstances

          of the case, we are of the considered opinion that the writ

          application as framed in the facts of the present case need not be

          entertained. The order of release (Annexure ‘P3A’) is dated

          13.10.2025. A reading of the same would show that on receipt of

          a notice in Form GST MoV-07, the Person-In-Charge of the

          conveyance on 13.10.2025 came forward and made payment of

          the tax and penalty as proposed. In view of the said readiness of

          the Person-In-Charge of the conveyance to deposit the tax and

          penalty amount, the competent authority accepted the same and
          Patna High Court CWJC No.1982 of 2026(2) dt.11-05-2026
                                                      6/6




                    directed for release of the goods and conveyance. Learned

                    counsel for the petitioner is unable to demonstrate from the

                    records that at the relevant point of time, the petitioner had

                    made any protest. The order of the competent authority is an

                    appealable order under Section 107 of the CGST/BGST Act,

                    2017. The appeal could have been preferred within a period of

                    three months but the petitioner chose not to file any appeal

                    within the prescribed period.

                                7. In such circumstance, this Court is of the

                    considered opinion that filing of the writ application directly

                    before this Court without availing the statutory remedy of

                    appeal is required to be discouraged, more so where the

                    petitioner is unable to demonstrate violation of principles of

                    natural justice or any jurisdictional error.

                                8. In result, we find no merit in the writ application. It

                    is dismissed accordingly.



                                         (Rajeev Ranjan Prasad, J)


                                              (Soni Shrivastava, J)
lekhi/-

U


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