C.M. Lodha, C.J.
1. These are four connected writ petitions under Article 226 of the Constitution of India by the 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 the consumers.
3. Writ Petition No. 2031 of 1971 pertains to the period from 1st October, 1964, to 30th September, 1965. The Commercial Taxes Officer, Special Circle, Kota, by his order dated 24th February, 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 27th March, 1970, held that penalty was leviable, but, at the same time, he remanded the case to the assessing authority for redetermining the amount of penalty after notice to the assessee. A copy of the Deputy Commissioner's order dated 27th March, 1970, has been placed on the record and marked annexure 1. On receipt of the record, the Commercial Taxes Officer issued a notice dated 19th February, 1971, to the assessee to show cause why penalty be not levied upon it under Section 5C 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 24th May, 1971, whereby he reduced the amount of penalty from Rs. 53,000 to Rs. 43,000 (exhibit 3). Aggrieved by the order of the Commercial Taxes Officer (exhibit 3) the petitioner has filed the writ petition.
4. Writ Petition No. 2030 of 1971 pertains to the period commencing from 1st October, 1965, to 30th September, 1966. The Commercial Taxes Officer, Special Circle, Kota, by his order dated 2nd May, 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 9th April, 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 24th May, 1971 (exhibit 3), reduced the amount of penalty from Rs. 60,000 to Rs. 32,500 after serving notice (annexure 2) on the assessee.
5. Writ Petition No. 1802 of 1971 is for the period commencing from 1st October, 1966, to 30th September, 1967. In this case, only notice dated 8th October, 1971 (exhibit 1) has been issued by the assessing authority to the petitioner to show cause why the penalty be not levied under Section 5C of the Act and, aggrieved by the notice, the petitioner has filed the writ petition.
6. Writ Petition No. 2029 of 1971 is in respect of the period commencing from 1st October, 1967, to 31st July, 1971. For this period also, only notice dated 8th October, 1971 (annexure 1) has been issued to the assessee to show cause why penalty be not levied on it under Section 5C of the Act.
7. 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.
8. 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 cases the petitioner has challenged the vires of Section 5C 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 Section 5C 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 Section 5C of the Act and has questioned the very jurisdiction of the assessing authority to initiate proceedings for levy of penalty under Section 5C. In these circumstances, we are not prepared to throw out the writ petitions on the ground of existence of alternative remedy.
9. Coming to the merits of the case, the following points have been urged on behalf of the petitioner :
(1) Section 5C is ultra vires Article 301 of the Constitution of India ;
(2) The penalty could have been levied only under Section 16(1)(k) of the Act and not under Section 5C and, in any case, the petitioner has not utilised the raw material, viz., cotton, for a purpose other than that specified in Sub-section (1) of Section 5C ;
(3) Levy of penalty under Section 5C(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.
10. For a correct appraisal of the contentions raised on behalf of the petitioner, it would be useful to reproduce here the relevant portion of Section 5C of the Act as it stood at the relevant time:
5C. Concessional rate of tax for raw materials.-(1) Notwithstanding anything contained in this Act, but subject to such restrictions and conditions, as may be prescribed, the rate of tax payable on the sale to or purchase by a registered dealer of any raw material for the manufacture in the State of goods for sale within the State or in the course of inter- State trade or commerce shall be at a concessional rate of 1 per cent of the sale or purchase price of such raw material.
(2) Where any raw material purchased by a registered dealer under Sub-section (1) is utilised by him for any purpose other than a purpose specified therein, such dealer shall be liable to pay as penalty, such amount, not less than the difference between the amount of tax on the sale of such raw material at the full rate applicable thereto under Section 5 and the amount of tax payable under Sub-section (1) but not exceeding one and one-quarter times the amount of tax at such full rate, as the assessing authority may determine, having regard to the circumstances in which such use was made.
11. A close reading and an analysis of the aforesaid provisions would show that a concession has been granted in respect of the rate of tax applicable to raw material sold to or purchased by a registered dealer for manufacture in the State of goods for sale within the State or in the course of inter-State trade or commerce. The ordinary rate of tax on sale or purchase of cotton (raw material) is 2 per cent, whereas the concessional rate prescribed for the purpose mentioned in Section 5C(1) is 1 per cent. However, a safeguard has been provided against the misuse of the concession and Sub-section (2) lays down that if any raw material purchased by a registered dealer under Sub-section (1) is utilised by him for any purpose other than a purpose specified therein, such dealer shall be liable to a penalty which shall be not less than the difference between the amount of tax on the sale of such raw material at the full rate and the amount of tax payable under Sub-section (1), but not exceeding one and one-quarter times the amount of tax at such full rate as the assessing authority may determine. In other words, to avail of the concession provided in Sub-section (1), two conditions must be fulfilled:
(i) The raw material must be utilised for manufacture of goods in the State itself and not outside the State; and
(ii) the goods manufactured out of the raw material must be sold within the State or in the course of inter-State trade or commerce.
12. It appears to us that if either of these two conditions is broken, the dealer, who has availed the concession, is bound to pay the penalty, as prescribed under Sub-section (2).
13. Before we proceed to examine the legality or vires of the aforesaid provision, we wish to make it clear that so far as the facts in these cases are concerned, there is no dispute that yarn manufactured out of cotton, for which the petitioner has availed of the concessional rate, has been sent by the petitioner to its branches or other agencies at places outside Rajasthan and sold there to the consumers. To make the position clear, we may reproduce here paras 13, 14 and 15 of Writ Petition No. 2030 of 1971:
13. That during the relevant accounting year from 1st October, 1965, to 30th September, 1966, the petitioner consumed cotton of the value of Rs. 45,20,107.00, which it had purchased from dealers in Rajasthan and had similarly consumed cotton of the value of Rs. 9,24,024.00, which it purchased from dealers outside Rajasthan and that this cotton of the total value of Rs. 54,44,131.00 was consumed by the petitioner in producing yarn. Out of the goods produced, the company has sold its finished products of the value of Rs. 31,03,205.00 within the area of Rajasthan and in the course of inter-State trade and commerce and cotton yarn of the value of Rs. 53,01,983.00 was sent to the branches or other agencies of the petitioner at places outside Rajasthan and sold by them to the consumers.
14. That the rate of the finished products to raw materials comes to 100 : 64.2 approximately and the total amount of cotton consumed in the production of the yarn, which was despatched to the branches or to the other agencies outside Rajasthan and was sold by them at the various places outside Rajasthan comes approximately to about Rs. 34,55,233.00. As consumption of cotton of the value of Rs. 9,24,024.00 was purchased outside Rajasthan, it logically follows that the petitioner utilised Rajasthan cotton of the value Rs. 25,31,209.00 for producing the extra yarn which was sold outside Rajasthan by the petitioner through its branches and other agencies.
15. That the petitioner has paid 1 per cent of the sales tax on this cotton of Rs. 25,31,209.00 to the registered dealers from whom the petitioner purchased the cotton.
14. So also in other cases, the position is beyond dispute that penalty is being levied in respect of cotton which was no doubt utilised by the petitioner for manufacture of yarn in Rajasthan but the yarn so manufactured was ultimately sold outside Rajasthan. Thus, it becomes clear that one essential condition regarding sale of the manufactured product within Rajasthan or in the course of inter-State trade or commerce was not complied with in respect of the yarn sold outside Rajasthan. The question then is whether such a provision providing penalty, in the circumstances mentioned in the section, is ultra vires Article 301 of the Constitution of India.
15. At this juncture, for the sake of convenience, we may also read articles 301, 302, 303 and 304, to which reference has been made by the learned counsel for the parties in the course of their arguments :
301. Freedom of trade, commerce and intercourse.-Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.
302. Power of Parliament to impose restrictions on trade, commerce and intercourse.-Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.
303. Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.-(1) Notwithstanding anything in Article 302, neither Parliament nor the Legislature of a State shall have power to make any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.
(2) Nothing in Clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.304. Restrictions on trade, commerce and intercourse among States.-Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law-
(a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced ; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:
Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
16. The submission by Mr. Khetan, on behalf of the petitioner, is that levy of penalty under Section 5C(2) hampers trade, commerce and intercourse in the territory of India and is, therefore, bad as Article 301 guaranteed that subject to the provisions contained in articles 302, 303 and 304, trade, commerce and intercourse throughout the territory of India shall be free. Shri Khetan has also argued that Article 304, which engrafts an exception to Article 301, does not save the penalty/levy in question.
17. Article 301 came up for consideration before their Lordships of the Supreme Court in Andhra Sugars Ltd. v. State of Andhra Pradesh A.I.R. 1968 S.C. 599 as well as in State of Madras v. Nataraja Mudaliar A.I.R. 1969 S.C. 147.
18. In Andhra Sugars Ltd. v. State of Andhra Pradesh A.I.R. 1968 S.C. 599, the Supreme Court observed as follows :
Normally, a tax on sale of goods does not directly impede the free movement or transport of goods. Section 21 of the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961 (Andhra Pradesh Act No. 45 of 1961) is no exception. It does not impede the free movement or transport of goods and is not violative of Article 301.
19. In Atiabari Tea Co. Ltd. v. State of Assam A.I.R. 1961 S.C. 232, which was approved by their Lordships in Andhra Sugars Ltd. v. State of Andhra Pradesh A.I.R. 1968 S.C. 599, it was held that it is the free movement or the transport of goods from one part of the country to the other part, which is intended to be saved, and if any Act imposes any direct restrictions on the very movement of such goods, it attracts the provisions of Article 301, and its validity can be sustained only if it satisfies the requirements of Article 302 or Article 304 of Part XIII.
20. It is not the petitioner's case that the impugned levy of penalty (as it is called) operates directly or immediately on trade or movement of goods nor has he been able to satisfy us that the movement of goods has been restricted directly by imposition of penalty in question.
21. Again in State of Madras v. Nataraja Mudaliar A.I.R. 1969 S.C. 147, Bachawat, J., with whom Shah, Mitter, Vaidialingam and Hegde, JJ., also agreed, observed as follows:
I am, therefore, inclined to think that normally a law imposing a tax on inter-State sales does not offend Article 301. It seems to me that the Central Sales Tax Act, 1956, is no exception to this rule. None of its provisions directly impede the movement of goods or the free flow of trade.
22. Here, we may also point out that there is no difference in rates showing preference or discrimination. The rate of tax on cotton under Section 5 on its sale or purchase is 2 per cent and for a part of the period 3 per cent. All that Section 5C(1) provides is grant of concession in case the cotton sold or purchased in Rajasthan is utilised for manufacturing goods in Rajasthan and the goods so manufactured are sold in the State of Rajasthan or in the course of inter-State trade or commerce. We do not feel persuaded to hold that merely because a concessional rate has been provided, the provision becomes illegal or void.
23. In view of the two Supreme Court decisions, referred to above, we do not consider it necessary to make a detailed reference to a judgment of our own Court reported as Walkar Anjaria & Sons v. State A.I.R. 1969 Raj. 162, wherein it has been held that Section 5A of the Rajasthan Sales Tax Act (29 of 1954) is neither ultra vires of articles 286, 301 and 304 of the Constitution, nor is it in contravention of Section 15 of the Central Sales Tax Act.
24. We are, therefore, of the opinion that Section 5C is not hit by Article 301 of the Constitution of India. This finding also cuts across the other branch of Mr. Khetan's argument that the case is not covered by Article 304 of the Constitution. The question of bringing the case under any of the exceptions provided in articles 302 to. 304 would arise only if a particular provision of law is hit by Article 301. It is pertinent to point out that Article 304(a) provides that notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced. However, there is no question of goods being imported from other States in the present case. So also the case is not covered by Sub-article (b) of Article 304 of the Constitution as it is not the case of the State that any restrictions on freedom of trade have been imposed in the public interest.
25. Before parting with this point, we may advert to a similar case decided by the High Court of Madhya Pradesh reported as Chhotabhai Jethabhai Patel & Co. v. State of Madhya Pradesh  30 S.T.C. 1, wherein vires of Section 8(2) of the Madhya Pradesh General Sales Tax Act, 1958, was challenged. Section 8 provides that the rate of tax payable on the sale to or purchase by a registered dealer of any raw material for manufacture of other goods for sale in the State of Madhya Pradesh or in the course of inter-State trade or commerce would be 1 per cent of the sale price or purchase price of such raw material. Sub-section (2) of Section 8 however further provided that where raw material purchased under Sub-section (1) by a registered dealer is utilised by him for any purpose other than the purpose specified in Sub-section (1), such dealer would be liable to pay a penalty more or less to the same extent as provided in Section 5C of our Act. The petitioner in that case purchased tendu leaves in the State of Madhya Pradesh for manufacture of bidis and paid sales tax at the concessional rate of 1 per cent. The petitioner had branches at other places in the State of Maharashtra where he transferred some bidi leaves as a consequence of which a penalty under Section 8(2) of the Madhya Pradesh Act was imposed upon him. The petitioner's contention was that imposition of penalty under Section 8(2) was without authority of law. This contention was, however, overruled and it was held that the provisions of Section 8(1) were beyond challenge. It was also held that where the law allows a concessional rate of tax coupled with a restriction to the availability of concession, with a view to encourage manufacture and sale of goods within the State or in the course of inter-State transaction, the restriction must be upheld as reasonable. It was observed that such a law did not constitute an unreasonable restriction violative of either Article 19(1)(g) or articles 301 and 304 of the Constitution of India.
26. It appears to us that when by his own volition the petitioner has obtained concession in the matter of rate of tax by giving a declaration so as to make out a case for concession, he cannot be allowed to turn round and act in defiance of the conditions attached to the grant of concession and then complain that his right of free trade is hampered. As already observed above, it is not the contention on behalf of the petitioner that the State was not competent to prescribe a concessional rate in order to encourage manufacture and sale of goods within the State or in the course of inter-State trade and commerce. A provision for penalty in the case of contravention of the conditions attached to the concession availed of by a dealer is only an incidental power to prevent evasion of tax.
27. In State of Madras v. Nataraja Mudaliar A.I.R. 1969 S.C. 147, Hegde, J., observed as follows:
A measure which is intended to check the evasion of tax is undoubtedly a valid measure...It is in public interest to see that in the guise of freedom of trade, they do not evade the payment of tax.
28. Thus, it is well-settled that the power to impose tax also includes an incidental power to take appropriate measure to prevent its evasion. In that view of the matter, the provision regarding penalty contained in Sub-section (2) of Section 5C cannot be said to be ultra vires or void.
29. Again, in A. V. Fernandez v. State of Travancore-Cochin  6 S.T.C. 22, where although the rules afforded a concession when the sale of coconut oil was made within the State and denied the same when it was effected outside the State, it was held that the rules were not open to challenge under Article 303(1) of the Constitution of India.
30. In view of what has been observed above, we are unable to accept the contention raised by Mr. Khetan that Section 5C is ultra vires Article 301 of the Constitution of India or is otherwise bad. With the decision on point No. (1), the plank of the petitioner's case falls. However, we may deal with the other points also raised by the learned counsel.
31. Section 16(1)(k) provides that after purchasing any goods in respect of which a dealer has made a declaration under the provisions of this Act or the Rules made thereunder, but fails without reasonable cause to make use of the goods for the declared purpose, the assessing authority may direct that such person shall pay penalty. The contention of the learned counsel for the petitioner is that the petitioner could have been penalised only under the aforesaid provision. We are, however, unable to accept this contention for the simple reason that the aforesaid provision deals with a case where the dealer had a guilty intention at the time of making a declaration. In other words, the element of mens rea must be present in order to bring the case within the ambit of Section 16(1) (k). Be that as it may, as long as Section 5C(2) is a legal and valid provision, no valid grievance can be made if the action was taken against the petitioner for breach of the conditions prescribed under Section 5C(1), which is a special provision. Section 16(1) (k) appears to us to be a general provision for imposition of penalty in case of wrong declaration while Section 5C(2) is a special provision. It is well-settled that where a special provision has been made for meeting a special situation, the general provision need not be resorted to.
32. The learned counsel for the petitioner also argued that, in the facts and circumstances of the case, if the petitioner transferred some yarn to its branches and agencies outside Rajasthan, it cannot be said that the cotton had been utilised for purpose other than the purpose mentioned in Sub-section (1) of Section 5C, and such a transfer should be taken as being in the course of inter-State trade and business. It is enough to point out that no such objection has been taken in the writ petition and, at any rate, as observed above, in paras 13, 14 and 15 of the writ petition, it has been specifically admitted that sales, with reference to which penalty was imposed, were made to consumers outside Rajasthan through the branches of the petitioner. In view of the averments made by the petitioner itself, in paras 13, 14 and 15 of the writ petition, it does not lie in its mouth now to urge before us that it was in the course of inter-State trade and commerce that the manufactured yarn was transferred outside Rajasthan.
33. The learned counsel for the petitioner relied on Polestar Electronic (P.) Ltd. v. Additional Commissioner  41 S.T.C. 409 (S.C.), in support of his contention that sales at branches outside Rajasthan would not attract levy of penalty. On going through the facts of that case, however, we find that that case is altogether distinguishable. In that case, the certificates of registration were in the form, as it stood prior to its amendment on 29th March, 1973, and they did not specify that the resale of the goods purchased or their use as raw material in the manufacture of goods or the sale of manufactured goods should be inside Delhi. It was held that resale within the meaning of Section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act (6 of 1941), as applied to the Union Territory of Delhi, was not confined to the territory of Delhi but also included resale outside the territory of Delhi. In other words, there was no geographical limitation confining 'resale', 'manufacture' or 'sale' to the territory of Delhi. In these circumstances, the Supreme Court came to the conclusion that there was no breach of conditions. In the case on hand, however, there is a clear provision that in order to avail of the concession, the raw material must be utilised for the manufacture of goods in the State and the manufactured goods must also be sold in the State or in the course of inter-State trade or commerce. Consequently, the rationale of the decision in Polestar Electronic (P.) Ltd.  41 S.T.C. 409 (S.C.) has no application to the facts and circumstances of the present case.
34. Coming to the last point, viz., that the State is levying tax in the form of penalty twice though the same is forbidden by Section 15 of the Central Sales Tax Act, 1956, it is true that sales tax cannot be levied at more than one stage in respect of declared goods, in view of Section 15 of the Central Sales Tax Act, but, in the present case, no tax is being levied second time. Only concessional rate of tax was charged in the first instance on the basis of the declaration made by the petitioner in terms of Section 5C(1) of the Act. What is being levied under Sub-section (2) of Section 5C is penalty for contravention of the conditions attached to the concession. It can, by no stretch of imagination, be said to be a tax on sale or purchase of goods. This contention is, therefore, also without force.
35. For the reasons mentioned above, we do not see any force in these writ petitions and dismiss the same. The petitioner will pay Rs. 300 only as costs to the respondents.
36. The learned counsel prays for grant of certificate for appeal to the Supreme Court. Certificate is refused.