Satyanarayana Rao, J.
1. The assessees are licensed tanners and they were taxed on a purchase turnover of Rupees 9,83,438-13-8 under Rule 16 of the Madras General Sales-tax (Turnover and Assessment) Rules. The contention before the Appellate Tribunal was that after tanning the skins, such tanned skins were exported outside the Indian Union and, therefore, they were entitled to exemption under Article 286 of the Constitution. This contention was rightly rejected by the Appellate Tribunal, and it is not now persisted in. But the short point, that has been raised by the learned counsel for the assessees, is that under Rule 16 a tanner may be taxed on the purchase price only if his purchase was from a licensed dealer of untanned hides and skins, and if his purchase was only for the purpose of tanning by him. Until these two conditions were satisfied, the levy of the tax by the department could not be justified.
As regards the second of the two conditions, it is stated that the language of the rule 'sold to the tanner' and the language of the return form A. 4 prescribed by the rules in which the assessee is required to state the amount for which hides and skins were purchased for tanning by the assessee, as well as the exemption under Sub-clause (3) of Rule 16 undoubtedly support the contention of the learned counsel for the assessee for otherwise there is the possibility of successive tanners being taxed under this rule. If the tanner purchases from a licensed dealer and then Bells it without tanning to another tanner, who is also a licenced tanner and so on, all these tanners could be taxed under this rule and unless a limit of the nature suggested, viz, that the purchase must be for tanning by the tanner him self, is imposed, the multipoint tax cannot be avoided. If, however, after the return is made by the tanner, showing the amount for which he purchased untanned hides and skins for the purpose of tanning by himself, he changes his mind and exports them, and he happens to (sic) the last dealer, he can be taxed, and it will (sic) open to him to claim a refund of the tax already paid on the purchase price as provided by Rule 15(5) of the Turnover and Assessment Rules. No hardship therefore would be caused to the assessee. If having purchased untanned hides and skins for the purpose of tanning by himself, he subsequently changes his mind and exports them or sells them to others.
2. As regards the other contention, that the purchase must be from a licensed dealer, with reference to the turnover now in dispute, the assessee did not no doubt make any attempt either before the Department or before the Appellate Tribunal to raise the question and substantiate the point by placing material before any of them. This was explained by the assesses as due to the fact, that until the law was settled by the Supreme Court and also by this court that Rule 16(5) was 'ultra vires,' it was assumed than even purchases from unlicensed dealers by a tanner could be made liable, and that therefore there was the omission to draw the distinction between purchase from a licensed dealer and purchase from an unlicensed dealer. Having regard to the fact, that there was some confusion in the mind of the assessee and also the department till the law was settled recently, we think there is Justification for the contention of the assessee, that his omission was not wilful but was due to this circumstance.
We do not think, if really the assessee has (sic) a legitimate grievance, that he was taxed upon the amount for which under law he could not (sic) legally made liable, he should be deprived of the opportunity to substantiate his case. We, therefore, think that, in the peculiar circumstances of this case, the assessee should be given an opportunity by the appellate Tribunal to prove, if he can, whether the whole or any portion of the purchase turnover on which he was assess(sic) during the relevant year represents purchase made by him from dealers other than lice(sic) dealers. For this purpose, we think it necesss(sic) to set aside the order of the Appellate Tribunal and remit the case back to them for dispos(sic) according to law in the light of the observation contained in this judgment.
3. As the assessees did not raise the (sic) before, we think it just that they should be (sic) liable to pay the costs of the respondent in (sic) court which we fix at Rs. 250.