JUDGMENT

M. Jagannadha Rao, J.-Leave granted in S.L.P. (Civil) No. 13125 of 1990.

2. These two appeals have been filed by the Calcutta Iron Merchants Association. Civil Appeal No. 3234 of 1990 is filed against the order of the West Bengal Taxation Tribunal Calcutta (hereinafter called the Tribunal) dated 31.7.1989 in Revision Case No. R.N.-144 (T) of 1989. The connected Civil Appeal (arising out of S.L.P. (Civil) No. 1312 of 1990) in which we are passing separate orders is filed against the order of the same Tribunal in Case No. R.N. 89 of 1990 dated 6.7.1990.

3. To the extent the Tribunal held in its orders dated 31.7.1989 and 6.7.1990 against the State of West Bengal there are no appeals before us by the State. Appeals are preferred only by the appellant - Association aggrieved by that part of the orders of the Tribunal by which the Tribunal read down sub clause (vd) of Section 5(2) of the Bengal Finance (Sales Tax) Act 1941 (hereinafter called the 1941 Act) and the relevant rule, namely, Rule 27A (i) (1b) (ii) (c) (i) of the Bengal Sales Tax Rules, 1941 and treating them as "directory" and not mandatory. Appellant Association contends in these appeals that having regard to the language employed in the latter part of sub clause (vd) of Section 5(2)(a), the said language is not capable grammatically of such a construction.

Civil Appeal No. 3234 of 1990

4. The following are the relevant facts:

The 1st appellant is a registered Association and the 2nd appellant is its President. The President is himself an iron merchant carrying on his business. The 2nd appellant and the members of the Association are dealers under the 1941 Act in respect of iron and steel. In the writ petition, the constitutional validity of Section 5(2)(a)(vd) of the Act as it stood from 1.4.1985 to 1.4.1989 before the same was amended in 1989 by West Bengal Act 3 of 1989 with effect from 1.4.1989 was challenged under Article 226 of the Constitution of India in the High Court of Calcutta. The said writ petition stood transferred to the Tribunal and was disposed of by Judgment dated 31.7.1989 in R.N. 144(T) of 1989 and batch. It was contended before the Tribunal that under the above provision in Section 5(2)(a)(vd) which was introduced in 1985 with effect from 1.4.1985, the point of taxation was changed to the first point of sale from the last point of sale inside the State of West Bengal. Under the Central Sales Tax Act, 1956, only the first point of sale in iron and steel in West Bengal was eligible for tax and subsequent sales thereof would not be subject to any tax, provided the dealer at the second and subsequent points of sale was able to prove to the satisfaction of the Commissioner of Commercial Taxes that the concerned iron and steel were purchased by him from the same firm in West Bengal on or before 1.4.1985 from a registered dealer and provided that a declaration in Form XXIVC obtainable in the prescribed proforma and duly signed by the selling registered dealer was furnished. It was the contention of the petitioners before the Tribunal that sub clause (vd) of Section 5(2)(a) of the 1941 Act imposes an unreasonable restriction on the free flow of trade in iron and steel. The State legislature had no power to enact such a provision. Sales tax was an indirect tax intended to be passed on to the buyers. But clause (vd) of Section 5(2)(a) prohibited such recovery and this violated Article 19(1)(g) and Article 14. The clause was bad because it cast an additional obligation on the second of the subsequent selling dealer to furnish a declaration in Form XXIVC. According to them, it was sufficient to ask such a dealer to prove that the goods had, in fact, suffered tax at the first point of sale. The first purchasing dealer was unreasonably put at the mercy of the first selling registered dealer, it is contended.

5. The Tribunal, in its Judgment dated 31.7.1989, which is the subject matter of the Civil Appeal No. 3234 of 1990, held that non-production of a de