S. C. AGRAWAL, J. - (1.) IN this writ petition, the petitioners have challenged the demand notice issued by the Commercial Taxes Officer, Special Circle, Kota (hereinafter referred to as "the Commercial Taxes Officer") under rule 31 of the Rajasthan Sales Tax Rules, 1955. The said demand notice is for the recovery of the penalty imposed by the Commercial Taxes Officer under section 7aa of the Rajasthan Sales Tax, 1954, read with section 9 (2a) of the Central Sales Tax Act, 1956 as well as the interest imposed under section 11b of the Rajasthan Sales Tax Act read with section 9 (2) of the Central Sales Tax Act. The main reason why the petitioners approached this directly by filing this writ petition under article 226 of the Constitution was that they have challenged the constitutional validity of the provisions contained in sub-section (2a) of section 9 of the Central Sales Tax Act which was inserted in the Central Sales Tax Act by the Central Sales Tax (Amendment) Act, 1976. The case of the petitioners is that the said provision is violative of the article 20 (1) of the Constitution of INdia.
(2.) DURING the pendency of this writ petition, the question as to the constitutional validity of sub-section (2a) of section 9 of the Central Sales Tax Act has been considered by the Supreme Court in Shiv Dutt Rai Fateh Chand v. Union of India [1983] 53 STC 289; (1983) 3 SCC 529 wherein the Supreme Court has held that the said section is not violative of the provisions of articles 20 (1) and 19 (1) (f) of the Constitution of India. Shri Mehta, the learned counsel for the petitioners, has sought to challenge the order passed by the Commercial Taxes Officer on merits. I my opinion the remedy of appeal is available to the petitioners to challenge the correctness of the order passed by the Commercial Taxes Officer on merits and in view of the availability of the said remedy of appeal, the said question cannot to agitated in these proceedings under article 226 of the Constitution. It would be open to the petitioners to agitate this matter by filing appeal before the competent authority and in the matter of computation of the period of limitation for the said appeal, the appellate authority will give due regard to the pendency of this writ petition in this Court. With these observations the writ petition is dismissed. There will be no order as to costs. Writ petition dismissed. .;