C. M. LODHA, C. J. - (1.) THESE are four conrected writ petitions under Art. 226 of the Constitution of India by Rajasthan Spinning and Weaving Mills Ltd. (hereinafter to be referred to as "the petitioner" ). The points arising for decision in all the writ petitions are the same, and, therefore, we propose to dispose them of by a single order.
(2.) THE petitioner is a joint stock public limited company registered under the Companies Act and its business is to purchase cotton and other fibres and manufacture yarn out of the same. It is not in dispute that the petitioner purchases cotton in the State of Rajasthan and also from outside the State of Rajasthan and in the same way it sells its manufactured product i. e. yarn inside the State of Rajasthan as well as in the course of inter-State trade and business. It has also its branches and other agencies outside Rajasthan, where yarn is sent from Rajasthan for sale to consumers. Writ petition No. 2031 of 1971 pertains to the period from October 1, 1964 to September 30, 1965. The Commercial Taxes Officer, Special Circle, Kota, by his order dated February 24, 1967, imposed a penalty of Rs. 53,000/-with reference to sale of cotton worth Rs. 37,75,000/ -. Aggrieved by the order of the Commercial Taxes Officer, the petitioner filed appeal before the Deputy Commissioner, Commercial Taxes (Appeals), Udaipur Range Udaipur, who by his order dated March 27, 1970, held that penalty was leviable, but at the same time, he remanded the case to the assessing authority for re-determining the amount of penalty after notice to the assessee. A copy of the Deputy Commissioner's order dated March 27, 1970, has been placed on the record and marked Annexure 1. On receipt of the record, the Commercial Taxes Officer issued a notice dated February 19, 1971, to the assessee to show cause why penalty be not levied upon it under sec. 5-C of the Rajasthan Sales Tax Act (No. 29 of 1954) (which will hereinafter be referred to as "the Act") for having transferred yarn outside Rajasthan. Thereafter, the Commercial Taxes Officer passed a fresh order on May 24, 1971, whereby he reduced the amount of penalty from Rs. 53,000/- to 43,000/- (Ex. 3 ). Aggrieved by the order of the Commercial Taxes Officer (Ex. 3), the petitioner has filed the writ petition. Writ petition No. 2030 of 1971 pertains to the period commencing from October 1, 1965 to September 30, 1965. The Commercial Taxes Officer, Special Circle, Kota, by his order dated May 2, 1968, imposed a penalty of Rs. 60,000/- upon the petitioner under section 5c of the Act, with reference to sale of cotton worth Rs. 30,00,000/ -. The assessee went in appeal and by his order dated April 9, 1970, the Deputy Commissioner, Commercial Taxes (Appeals), Udaipur Range, Udaipur, remanded the case to the assessing authority for deciding the question of penalty afresh after notice to the assessee. Thereafter, the Commercial Taxes Officer, by his order dated May 24, 1971 (Ex. 3), reduced the amount of penalty from Rs. 60,000/- to Rs. 32,500/-, after serving notice (Annexure 2) on the assessee. Writ petition No, 1802 of 1971 is for the period commencing from October 1, 1966 to September 30, 1967. In this case, only notice dated October 8,1971 (Ex. 1) has been issued by the assessing authority to the petitioner to show cause why the penalty be not levied under section 5-C of the Act and aggrieved by 1he notice, the petitioner has filed the writ petition. Writ petition No. 2029 of 1971 is in respect of the period commencing from October 1. 1967 to July 31, 1971. For this period also, only noticd dated October 8, 1971 (Annexure 1) has been issued to the assessee to show cause why penalty be not levied on it under section 5-C of the Act.
(3.) THUS, it may be noted that writ petitions Nos. 1802 of 1971 and 2029 of 1971 have been filed against show cause notice only. Writ petition No. 2031 of 1971 has been filed from the order of the assessing authority even though remedy by way of appeal against the impugned order was available to the petitioner under section 13 of the Act and the same is the case in respect of writ petition No. 2030 of 1971. A preliminary objection has been raised on behalf of the Department that the petitioner has not availed of the alternative, adequate and efficacious remedy by way of appeal and has come straight to this Court by way of writ petition, and therefore, the writ petitions should be dismissed on the simple ground that the assessee should have availed the alternative remedy of appeal. It may, however, be pointed out that in all these eases the petitioner has challenged the vires of sec. 5-C of the Act and has urged that penalty has been levied in two cases viz. , writ petitions Nos. 2031 of 1971 and 2030 of 1971, without authority of law and so also in the other two cases it has been argued that the notice issued by the assessing authority for levying penalty under sec. 5-C is void being without authority of law and therefore, the assessing authority should be restrained from taking any proceedings in pursuance of the impugned notice At this stage, we may point out that there is no absolute bar against entertainability of a writ petition under Article 226 of the Constitution of India, even if there exists an alternative remedy, provided an appropriate case for interference by writ is made out. It is noteworthy that the petitioner, in the present case, has challenged the vires of sec. 5-C of the Act and has questioned the very jurisdiction of the assessing authority to initiate proceedings for levy of penalty under section 5-C. In these circumstances, we are not prepared to throw out the writ petitions on the ground of existence of alternative remedy. Coming to the merits of the case, the following points have been urged on behalf of the petitioner: - (1) Section 5-C is ultra vires Article 301 of the Constitution of India; (2) The penalty could have been levied only under section 6 (1) (k) of the Act not under section 5-C and in any case, the petitioner has hot utilised the raw material, viz. , cotton for a purpose other than specified in sub-section (1) of section 5-C; (3) Levy of penalty under section 5-C (2) of the Act is in the nature of tax which is without authority of law and the State cannot do indirectly what cannot be done directly. ;