BRIJ LAL GUPTA, J.

( 1 ) THIS is a petition under Article 226 of the Constitution praying for the issue of a writ of cerliorari for the quashing of an order dated 23rd December, 1961, assessing the petitioner to sales tax under the U. P. Sales Tax Act.

( 2 ) THE petitioners case is that out of its total turnover it was entitled to exemption in respect of a turnover of Rs. 4,04,496-76 np. as the particular turnover related to the sale of oil-seeds which according to the petitioner were sold not to consumers but to dealers for the purpose of resale by them in the same condition.

( 3 ) IT may be stated that under the provisions of Section 3-AA sale of oil-seeds by a dealer to a consumer alone was liable to sales tax. The assessment order relates to the petitioners assessment for the year 1957-58. At the material time Section 3-AA stood as follows :-

Notwithstanding anything contained in Section 3 or 3-A, the turnover in respect of coal, iron and steel, raw jute, cotton, oilseeds or raw hides and skins, shall not be liable to tax except at the point of sale by a dealer to the consumer and the rate of tax shall not exceed three pies per rupee. Unless the dealer proves otherwise, a sale shall be presumed to be to a consumer.

( 4 ) SUBSEQUENTLY, the above section was amended. The words "unless the dealer proves otherwise a sale shall be presumed to be to a consumer" were deleted from the main section, and enacted in sub-section (2): "unless the dealer proves otherwise, every sale by a dealer shall, for the purpose of Sub-section (1), be presumed to be to a consumer.

( 5 ) IT will however be seen that in respect of the presumption the amendment did not make any real change in the section. Both prior as well as subsequent to the amendment a sale of the goods mentioned in the section was presumed to be to a consumer unless proved to be otherwise. But the presumption was always a rebuttable one, and it was open to a dealer to prove that the sale was not to a consumer and did not attract the liability to sales tax.

( 6 ) BY Notification No. 1095/x-1086-56 dated 30th March, 1957, a rule was made by the rule-making authority under the powers conferred on. it by Section 24 of the Act. The rule was as follows ;

12-A. A sale of any of the goods specified in Section 3-AA shall be deemed to be a sale to the consumer, unless it is to a dealer who furnishes a certificate in Form III-A to the effect that the goods purchased are for re-sale in the same condition. Details of all such certificates shall be furnished by the selling dealer with his return in Form IV.

( 7 ) IT may be stated that under the U. P. Sales Tax Act the return to be filed is a quarterly return. It follows that under the rule, the requisite certificate in Form III-A had to be filed with each quarterly return.

( 8 ) ADMITTEDLY the petitioner did not furnish a certificate in Form III-A, but produced two affidavits and a contract book in order to prove that the sales of oil-seeds by it had been made not to consumers, but to dealers, for resale in the same condition, and as such, the sales were not liable to sales tax. The Sales Tax Officer did not accept this evidence, as he took the view that the certificate in Form III-A required by Rule 12-A not having been filed and that being the only mode of proof permissible, the sales were not exempt from sales tax.

( 9 ) THE only argument which has been addressed to me by the learned counsel for the petitioner is that Rule I2-A is ultra vires of the provision in Section 3-AA of the U. P. Sales Tax Act. His point is that Section 3-AA gives the dealer a right to produce any kind of evidence or material to rebut the presumption that the sale was to a consumer, and the rule abridges or curtails that right by providing for proof only by a particular kind of evidence, namely a certificate in Form III-A. Thus the rule has made an inroad on the unqualified right conferred by Section 3-AA and has limited and curtailed it, and a rule, which takes away

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