Rule 4(3A) of the Tamil Nadu Rules is directory and not mandatory. The burden of proof cast upon the petitioners by section 6A of the CST Act was discharged by filing declarations in form F. The enquiry to be conducted under section 6A(2) of the CST Act is confined to finding out the truth or otherwise of the particulars contained in form F.

K. A. SWAMI, C.J.

All these writ appeals are preferred against the common order dated 13, 1994 [Reported as Sri Ganesan Traders v. Union of India, passed by the learned single Judge in a batch of writ petitions. Learned single Judge has disposed of all the writ petitions in the following terms :

"48. In view of the discussions as above, the following positions emerge :

(1) Rule 4(3A) of the Tamil Nadu Rules, being a machinery provision, is only directory in nature; but not mandatory.

(2) There is no conflict, repugnancy or inconsistency between the earlier pre-existing rule 4(3A) of the Tamil Nadu Rules and the subsequent enactment of the provisions, in the shape of section6A of the Central Act and rule 12(5) framed thereunder prescribing a declaration in form 'F' and to put it otherwise, rule 4(3A) must have to be construed as aiding, supplementing and supplanting the methodology of burden of proof contemplated under section 6A and in that view of the matter, it could not be stated to have been 'impliedly repealed'.

(3) The burden of proof that movement of goods is only by way branch transfer and not by way of inter-State sale is always upon the assessee-dealer and it never shifts.

(4) The burden of proof so cast on the assessee-dealer is capable of being discharged either by the production of declaration in form 'F' and evidence for the despatch of goods or by adduction of evidence aliunde without the production of declaration in form 'F' and evidence for the despatch of goods.

(5) Once the declaration in form 'F' and despatch of goods are produced by the assessee-dealer, it is however open to the assessing authority to make an enquiry as respects the particulars contained in the declaration in form 'F' to verify whether those particulars are true or not and to sift the evidence aliunde to come to a just and proper conclusion as to whether the transaction is a branch transfer or otherwise.(6) Once the enquiry contemplated under section6A(2) of the Central Act is completed and a finding is recorded that the particulars contained in form 'F' declaration are not true or the assessee-dealer failed to discharge the burden cast on him as to the proof of the movement of goods as being relatable to branch transfer and not otherwise, the inevitable inference, that there was a 'sale' as defined under the Central Act, cannot at all be avoided; and

(7) The cumulative effect of the provisions adumbrated under section 3, 6, 6A, 9 and 13 of the Central Act and rule 12(5) of the Rules framed thereunder prescribing declaration in form 'F' and rule 4(3A) of the Tamil Nadu Rules is to tax goods, movement of which had been made from one State to another, pursuant to the contract of sale and such sale getting concluded at a later point of time either in the State, where it had been effected or in the State, from which the goods had been moved and not to tax goods relatable to the transaction of branch transfer, which is admittedly a constitutional exclusion, in accordance with entry 92-A of List I of the Seventh Schedule to the Constitution. Although such exclusion is excluded by the insertion of entry 92-B of List I of the Seventh Schedule to the Constitution by section5 of the Constitution (Forty-sixth Amendment) Act, 1982, enabling the Union to levy or impose tax on such transaction by enacting a suitable legislation therefor, such a legislation is yet to see the light of the day and as such, branch transfer simpliciter is not liable to tax."

Hence, petitioners in some of the writ petitions have come up in writ appeals. As far as the State Government is concerned, it has accepted the judgment of the learned single Judge.

2. In all the writ petitions, the petitioners sought for issue of a writ of declaration or any other writ, order or direction in the nature of writ, declaring that rule 4(3A) of the Central Sales Tax (Tamil Nadu) Rules, hereinafter referred to as "the CST (TN) Rules", inserted by the first respondent by way of Notification