Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. Question relates to continued exemption on inter State sale of processed cereal-wheat for the assessment period under Notification issued under Section 8(5) of the CST Act dated 06.03.1978 which has not been withdrawn. 3. The petitioner firm is a dealer under the Rajasthan Sales Tax Act as well as the Central Sales Tax Act. The petitioner also holds a recommendation certificate issued by the Khadi and Gramodhyog Board, Rajasthan constituted under the Rajasthan Khadi and Village Industrial Board Act, 1955. A notification No. F.4 (21) FD/Gr.IV/78-3 dated 06.03.1978 was issued by the State Government as a delegate of the Parliament under Section 8(5) of the Central Sales Tax Act, 1956 granting exemption from tax, sales of certain commodities by any dealer, having his place of business in the State, and who holds an exemption certificate without payment of any fees issued to him on the recommendation of Rajasthan Khadi and Village Industries Commission constituted under the Rajasthan Khadi and Village Industries Board Act, 1955, in respect of the sale by him from any such place of business in the course of inter-State trade or commerce, of the goods specified in the list appended hereto. The said list appended to the aforesaid notification Annexure-6 dated 06.03.1978 included processing cereals and pulses. 4. The petitioner has claimed exemption under the aforesaid notification under the Central Sales Tax Act in respect of processed wheat sold by him by way of inter-State sales. The cereal-wheat was sold by the assessee after processing the same by removing the stones, polishing and grading. The said exemption was allowed to the petitioner under the regular assessment under the Central Sales Tax Act by the assessing authority. 5. However, the Commercial Taxes Officer (Anti Evasion) conducted a survey of assessees premises on 310.2003. The CTO (Anti Evasion) was not the assessing officer of the assessee, and the assessee was being regularly assessed by CTO, Circle B, Bhilwara. 5. However, the Commercial Taxes Officer (Anti Evasion) conducted a survey of assessees premises on 310.2003. The CTO (Anti Evasion) was not the assessing officer of the assessee, and the assessee was being regularly assessed by CTO, Circle B, Bhilwara. However, CTO (Anti Evasion) issued two notices dated 30.12.2003 under Section 30 of the Rajasthan Sales Tax Act, 1994 read with Section 9 of the Central Sales Tax Act for reopening the assessments for the periods of 1999-2000 and 2000-2001 stating that the State Government in its notification dated 27.03.1995 has clearly stated that “in exercise of the powers conferred by Section 4(2) of the RST Act, 1954 and in supersession of all notifications issued in this behalf , the State Government, hereby exempts from the tax with immediate effect the sale of products manufactured in the State and sold by any person.” 6. He opined that on the basis of the aforesaid Notification, the exemption from the tax is granted only on the sale of products manufactured in the State. But because the assessee is involved only in the processing of cereals and not production of cereals, he was not entitled to claim exemption under the aforesaid notification dated 06.03.1978 issued under the Central Sales Tax Act and it was liable to pay tax @ 4% under the CST Act on the turn over which has escaped assessment under CST Act by wrongful allowance of claim to exemption. 7. The petitioner challenged the aforesaid notice issued under Section 30 of the RST Act read with Section 9 of the CST Act for reopening the assessments under the CST Act by filing writ petition on 08.01.2004 inter alia on the ground that the Commercial Taxes Officer (Anti Evasion) had assumed jurisdiction which was not his domain and that too on non-existent facts inasmuch as unless Notification of exemption issued under Section 8(5) of the CST Act on 06.03.1978 is withdrawn or cancelled by the delegate in exercise of power conferred under CST Act, the fact of withdrawal of notification issued under the powers conferred under RST Act, cannot automatically result in withdrawal of exemption under CST Act also whereunder the State Government Acts as delegates of Parliament and the Notification issued in exercise of that power is a delegated legislation under the Central enactment which does not stand repealed or cancelled automatically by repeal of State law. It was also challenged on the ground that the Commercial Taxes Officer (Anti Evasion) was not assessing authority within the meaning of Section 30 of the Rajasthan Sales Tax Act, 1994. Thus, the challenge to notice was founded on the ground of lack of jurisdiction in Commercial Taxes Officer (Anti Evasion) and exercise of jurisdiction on non-existent fact on its face by the concerned authority. The notices Exhibits-11 and 12 were issued on 312.2003 for reopening the assessment under CST Act for the assessement periods. 8. The assessee filed a reply to show cause notice on 15.01.2004 taking aforesaid objection. He also informed that he has filed writ petition in the High Court on 08.01.2004 challenging the jurisdiction of the ACTO (Anti Evasion) to reopen the assessment and next date of hearing was fixed on 23.01.2004 and requested to await the outcome of hearing of writ petition. Show cause notice was issued by the learned Single Judge on 23.01.2004. However, meanwhile the Assessing Officer appears to have passed reassessment order on 16.01.2004 itself , the very day after written reply was submitted informing the respondents about challenge to his jurisdiction before this Court. The assessment orders were not served on assessee until issue of show cause notice by this Court. 9. The respondents passed reassessment orders for the two periods in question by levying tax @ 4% on inter-State turn over under CST Act and raised the demand in pursuance of the said notice which led the petitioner to amend the writ petition challenging the assessment also founded on invalid notice of reassessment. The amendment was allowed by the Court on 28.01.2004. 10. However, when the matter came up for hearing, the learned Single Judge dismissed the writ petition on the ground that the writ petition is not maintainable because alternative remedy of appeal against the order of Assessing Officer is available to the petitioner, Hence, this appeal. 10.11. In the present case, the assessee has challenged the assumption of jurisdiction by the respondent with respect to assessment on non-existent ground and absence of existence of pre-condition. If the proceedings itself are wholly without jurisdiction, no assessment could be founded on that. This fact also cannot be lost sight of that petitioner-appellant had approached this Court on receipt of notice of reopening on aforesaid grounds. If the proceedings itself are wholly without jurisdiction, no assessment could be founded on that. This fact also cannot be lost sight of that petitioner-appellant had approached this Court on receipt of notice of reopening on aforesaid grounds. He also promptly informed the respondent officer who had issued notices about his having approached this Court by way of writ petition and sought time to await its result. The assessee had not indulged in prolonging the proceedings. Time for completion of assessment was also not to expire shortly. Yet soon on receiving the information about filing of writ petition, the respondent proceeded to pass assessment order on 16.01.2004 itself , betrays that the Assessing Officer has acted in hot haste without even considering the petitioners request and objections to notices in an attempt to infructuate the remedy availed by the assessee to challenge the proceedings on the ground of inherent lack of jurisdiction, Ordinarily in the circumstances as were present in present case, the respondent Assessing officer ought to have at least waited until the petition was taken up for consideration by this Court or required the assessee to produce the orders of Court. In view thereof , merely because, the assessment has been passed during the pendency of the writ petition, the challenge of the petitioner that the assessing officer by wrongfully assuming the jurisdiction which did not vest in him by assuming non-existent fact, cannot result in exercise of jurisdiction vested in the assessing authority, if it is otherwise, not vesting in him. Moreover, the question being involved about the ambit and scope of exercise of delegated power by the State Government under one enactment when it happens to be delegate under two different enactments, one as a delegate of the State Legislature and another as a delegate of the Parliament is a question of substantial general importance, the existence of alternative remedy in the present case ought not to come in the way of Court to desist from deciding the issue on merit on undisputed facts. 12. The fact that the notification under which the petitioner claims exemption and which has been allowed to him as being issued under the CST Act in exercise of power conferred on the State Government under Section 8(5) of the CST Act and that Notification dated 06.03.1978 as such, has not been revoked or cancelled is not in dispute. 12. The fact that the notification under which the petitioner claims exemption and which has been allowed to him as being issued under the CST Act in exercise of power conferred on the State Government under Section 8(5) of the CST Act and that Notification dated 06.03.1978 as such, has not been revoked or cancelled is not in dispute. However, the other Notification which has been issued contemporaneously by the State Government in exercise of its power conferred for granting exemption from payment of tax leviable under the RST Act, has been subsequently substituted by another Notification which we shall presently notice. 13. The Notification to which reference has been made by the Commercial Taxes Officer (Anti Evasion) in its notice under Section 30 is the issue of Notification under Section 30 of the RST Act, 1994. However, he has assumed jurisdiction under CST Act read with Section 9 of the CST Act. In terms of Section 30 of the RST Act where tax has been wholly or in part unassessed or under assessed in any way or under any circumstances, it shall be deemed an escaped assessment and the assessing authority shall on the basis of the material on record or after making such enquiry as it may consider necessary, complete such assessment within the time limit provided in Sub-section (3) of Section 30. Sub-section (2) of Section 30 enables the Commissioner or a Deputy Commissioner (Administration) who has reason to believe that a dealer has escaped the assessment to tax in any manner provided in Sub-section (1), he may at any time, subject to the time limit specified in Sub-section (3), either direct the assessing authority to assess the tax or the fee or other sum or himself proceed to assess the same. 14. Therefore, subjective satisfaction of the officer, before taking any action under Section 30 about the escapement of tax for any reason has to exist in the mind of the assessing officer. The opinion on the basis of which the assessing authority is required to take action under Section 30 is subjective one. However, subjective may be the opinion which the assessing authority may have, its inherent limit is that it cannot be founded on the non-existing fact. The reference in this connection may be made to the decision in Barium Chemical Ltd. & Anr. However, subjective may be the opinion which the assessing authority may have, its inherent limit is that it cannot be founded on the non-existing fact. The reference in this connection may be made to the decision in Barium Chemical Ltd. & Anr. vs. Company Law Board & Ors., reported in AIR 1967 SC 295 , in which the Apex Court said that: “no doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. Since, the existence of circumstances is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness.” 15. The circumstances of the fact which has been used as a vehicle for initiating proceedings under Section 30 of RST Act read with Section 9 of the CST Act, as noticed above is issuance of the Notification by the State Government on 27.03.1995 in exercise of power conferred under Section 4(2) of the RST Act, 1954 whereas reassessment proceedings are initiated in respect of assessment under the CST Act. We may notice here that Rajasthan Sales Tax Act, 1994 came into force w.e.f. 010.1995 after the above Notification dated 27.03.1995 was issued prior to its commencement under old Act. 16. It has to be seen that State legislation has no authority to legislate to levy tax on sale or purchase of goods in the course of inter-State trade or commerce or outside a State or in the Course of import or export. Article 286 makes it clear that the Parliament alone is authorised to impose tax on sale or purchase of goods where such sale or purchase takes place in the course of inter-State trade or commerce outside the State or in the course of import of goods outside the territory of India. Article 286 makes it clear that the Parliament alone is authorised to impose tax on sale or purchase of goods where such sale or purchase takes place in the course of inter-State trade or commerce outside the State or in the course of import of goods outside the territory of India. Therefore, the sale which takes place outside the State, if any tax is to be levied on such sales by the State from which goods have moved in pursuance of sale, then the imposition can only be by an Act of parliament. Consequently, any incidental and subordinate or delegated legislation for giving effect to the levy of such imposition is also the subject matter of the legislation to be made by Parliament or its delegate. It operates in the same field of legislation as parent and primary legislation. It is in exercise of this power that the CST Act, 1956 was enacted by the parliament and tax was imposed on the sale or purchase which takes place in the course of inter-State trade or commerce which is termed as inter-State sale or purchase. Exemption from CST also comes within the domain of same legislative field. 17. It may not be out of place here to refer to relevant legislative development in this regard. 18. Section 9 of the CST Act deals with levy and collection of tax imposed under the Act. As originally enacted Section 9 did not contain Sub-section (2-A). The Parliament adopted the provisions of General Sales Tax laws relating to procedure of assessment and collection of Central Sales Tax on behalf of Government of India. It provided that CST imposed under the Act shall be levied and collected by the appropriate State Government in accordance with the provision made under General Sales Tax Law of that State relating to assessment, collection and enforcement of payment of tax and in the same manner as the tax on sale or purchase is assessed, collected and paid under the general sales tax law of the State. However, within the province of this general adoption of procedure for levy and collection was not included power to levy penalties or prosecution for offences provided under the State law as consequences of breaches of procedural provisions, hence, levy of penalties other than specifically provided under CST Act could not be resorted to as an effective tool of levy and collection of tax. The apex Court held in Khemka & Co. (Agencies) Ltd. vs. State of Maharashtra, 1975 (35) STC 571 (SC) that penalty is not merely sanction. It is not merely an adjunct to assessment. It is not merely consequential to assessment. It is not merely machinery. Penalty is an addition to tax and is a liability under the Act.... Penalty is not a continuance of assessment proceeding and that penalty partakes the character of additional tax. In order to levy penalty under the Act, there must be special provision for that purpose. 19. The same view was reiterated in Manganese Ore (India) Ltd. vs. The Regional Assistant Commissioner of Sales Tax, Jabalpur, reported in 1976 (37) STC 489 SC. 20. This ultimately led to insertion of Sub-section. (2-A) in Section 9 retrospectively, with effect from 5th January,1957 vide Amending Act No. 103 of 1976. 21. So also Sub-section (5) of Section 8 in its original form had enabled the Central Government to grant exemption or provide for tax at lower rate then otherwise leviable under the CST Act. It read “Notwithstanding anything contained in this section, the Central Government may if it is satisfied that it is necessary so to do in the public interest direct that.... no tax under this Act shall be payable by any dealer having a place of business. In any union territory in respect of sale made by him from such place of business... or that the tax on such sales shall be calculated at such lower rates, then those specified in Sub-section (1) or Sub-section (2) as may be mentioned in the notification” 22. Thus, power to exempt from tax or grant concession in rate of tax vested with Central Government and that too only in respect of registered dealers who had their place of business in the union territories. In Sub-section (5) the words “State Government” and the “State” were substituted for words “Central Government” and “Union Territory” respectively by Section 2 of CST Act (Amendment) Act, 1957. Only after this amendment that appropriate State Government was enabled to direct exemption from payment of tax under the CST Act or concession in rate of tax under the CST Act in place of Central Government. In the present form, Sub-section (5) came into existence w.e.f. 01.04.1973 vide CST (Amendment) Act, 1972. 23. Only after this amendment that appropriate State Government was enabled to direct exemption from payment of tax under the CST Act or concession in rate of tax under the CST Act in place of Central Government. In the present form, Sub-section (5) came into existence w.e.f. 01.04.1973 vide CST (Amendment) Act, 1972. 23. These changes show that power of the State Government to levy and collect tax imposable under CST Act, as per procedure under State Sales Tax Law, power to levy penalty provided under State Law, and power to exempt or grant concession under CST Act are exercisable only as a delegate of Parliament, within the province of CST Act and not beyond. In acting as delegate of Parliament, the subordinate legislation which the delegate brings into existence is independent of its power under general tax law of the State and is not conferred by State Law a priori. 24. In the present case, the very fact that the reassessment notice under the CST Act shows that the sales have taken place outside the state shows that the Stage legislation has no authority to deal with as a subject of imposition of tax under Entry 54 of List 2 of Seventh Schedule. But in terms of the provision of Article 286, the State Government from which the movement of goods subject of such inter State sale commences, is authorised to collect the tax on behalf of Government of India as per provision of CST Act. 25. The grant of exemption by Central Government under the CST Act is in the nature of subordinate legislation and is part of Central legislation. The State legislature has no authority to deal with the subject matter which falls strictly within the domain of the Parliament in all its aspects. So also, delegate of State in the matter of grant of exemption or withdrawal of exemption under respective legislation suffers from the same limitation under which a delegate or particular legislation is usually subject to in the matter of grant and revocation of regular exemption. It has to be by same procedure. 9.26. However, the exercise of power under the State legislature does not affect the exercise of power under the CST Act or vice versa unless otherwise provided by respective laws. It has to be by same procedure. 9.26. However, the exercise of power under the State legislature does not affect the exercise of power under the CST Act or vice versa unless otherwise provided by respective laws. It is for this reason that while enacting CST Act, the Parliament instead of providing an independent machinery for levy and collection of tax, made a provision under Section 9 of the CST Act that the tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within Clause (a) or Clause (b) of Section 3, shall be levied by the Government of India and the tax so levied or collected by that Government in accordance with the provisions of Sub-section (2), in the State from which the movement of the goods commenced. Thus, the site of levy of tax imposition became the territories of the states from which the movement of goods commenced in the inter-State trade or commerce. The levy is to be imposed by the Parliament and is to be collected by the Government of India. But for the purpose of availing existing machinery provisions under State laws, Sub-section (2) of Section 9 envisages that subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any interest of penalty payable by a dealer under this Act as if the tax or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State to assess or collect the tax under CST Act and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax registration of the transfer of any business, imposition of the tax liability of a person carrying on business on the transferee of , or successor to such business shall apply accordingly. Therefore, it is because of this statutory adoption, the State machinery set up for levy and collection of the tax under the general sales tax law in force in a particular State also become the machinery for the purpose of levy and collection of the imposition by Government of India for Government of India on its behalf . But for this provision, existing machinery of the general sales tax law would not have authority to levy and collection of the Central Sales Tax on its own. 10.27. It is in the light of this scheme of the legislative enactments emanating from different sources that the exemption clauses have to be viewed. Provision was made to authorise the State Government to exempt the tax under Section 4 of the RST Act, 1954 corresponding to Section 15 of the 1994 Act. As per Section 15 of the RST Act, 1994 notwithstanding anything contained in this Act, where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, exempt fully or partially, whether prospectively or retrospectively, from tax the sale or purchase of any goods or class of goods or any person or class of persons, without any condition or with such condition as may be specified in the notification. The exemption of tax under Section 4 of the Act of 1954 or for that matter under Section 15 of the Act of 1994, which came into force w.e.f. 010.1995 is restricted to the extent of the subject relating to intra-State sale or purchase, the subject of imposition by the State Legislation and not beyond. In exercise of power under Section 4(2) of the Act of 1954 or Section 15 of the Act of 1994, the State Government cannot grant exemption or concession in respect of inter State sale and purchase over which State Legislature has no authority to legislate. 28. In exercise of power under Section 4(2) of the Act of 1954 or Section 15 of the Act of 1994, the State Government cannot grant exemption or concession in respect of inter State sale and purchase over which State Legislature has no authority to legislate. 28. However, Section 8(5) of the CST Act also envisages that notwithstanding anything contained in this section, the State Government may on the fulfillment of the requirements laid down in Sub-section (4) by the dealer, if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette, and Subject to such conditions as may be specified therein, direct that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter-State trade or commerce, to a registered dealer or to the Government from any such place of business of any such goods or classes of goods as may be specified in the notification, or that the tax on such sales shall be calculated at such lower rates than those specified in Sub-section (1) or Sub-section (2) as may be mentioned in the notification and that in respect of all sales of goods or sales of such classes of goods as may be specified in the notification, which are made, in the course of inter-State trade or commerce, to a registered dealer or the Government by any dealer having his place of business in the State or by any class of such dealers as may be specified in the notification to any person or to such class of persons as may be specified in the notification, no tax under this Act shall be payable or the tax on such sales shall be calculated at such lower rates than those specified in Sub-section (1) or Sub-section (2) as may be mentioned in the notification. 129. The repeal of a State legislation itself would have resulted in repeal of subordinate legislation made under the repealed State Act, if the law on the same subject is not re-enacted, but such repeal would not result in repeal of the subordinate or delegated legislation made under the central legislation. 129. The repeal of a State legislation itself would have resulted in repeal of subordinate legislation made under the repealed State Act, if the law on the same subject is not re-enacted, but such repeal would not result in repeal of the subordinate or delegated legislation made under the central legislation. Therefore, mere withdrawal of or supersession of exemption notification under State Act will not result automatically in cancellation or supersession of a live Notification issued under Section 8(5) of the CST Act, notwithstanding the delegate authority under the two Acts happens to be the same. 130. Though, the delegate in either case may be the same person for two different legislations, the principle is well settled in this regard that the State Government when it exercises power conferred upon it under Section 8 (5) to totally exempt such inter-State sales or to levy tax at a concessional rate than what has otherwise been prescribed in Section 8 (1) and (2) of the Central Sales Tax Act, it functions and acts as a delegate of Parliament and does not act as a delegate of State legislature within the domain of legislative power of the State. 13.31. The actions of the State Legislature or its delegate under the provisions of the State Sales Tax Act are entirely different and they serve a different purpose. Once a Notification has been issued by the appropriate authority under Section 8 (5), it cannot become inoperative through obsolescence or by an attempted disturbance of such state of affairs by a totally unconnected or different legislative body or its delegate. It is only the authority which can grant exemption or concession under Section 8(5) that can withdraw or modify such exemption or concession through another Notification issued under that very provision. The State Legislature has no say in the matter. 32 In dealing with this aspect, reference may be made to the case of M. Ishwarlal & Co. & Ors. vs. State of Madras & Ors., reported in 1973 (32) STC 377 . The Madras High Court was to consider a case where exemption granted to inter-State sales of Jaggery and Gur by notification under Section 8 (5) of the Central Act was withdrawn on 21.03.1969. However, by another Notification, exemption in respect of intra-State sale of Jaggery and Gur was withdrawn prior to it from 01.01.1968 vide Madras General Sales Tax Act, 1968. However, by another Notification, exemption in respect of intra-State sale of Jaggery and Gur was withdrawn prior to it from 01.01.1968 vide Madras General Sales Tax Act, 1968. A question was raised before Madras High Court whether exemption in respect of inter-State sales of Jaggery and Gur after 01.01.1968 should be deemed to be withdrawn because of the legislative repeal of the Notification of exemption withdrawn under the Madras General Sales Tax Act, as State Legislation. 33. The question was answered by the Court in negative. It referred to the principle that delegated authority under Section 8(5) of the Central Sales Tax, 1956, has a particular function to perform