1. The only question that arises for consideration in this revision is whether horse gram flour falls within entry 80(b) of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, or within the exemption under a notification dated 4th March, 1974. The notification under section 17 of the Act, which confers exemption from levy of tax, runs as follows :
'In exercise of the powers conferred by sub-section (1) of section 17 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959), the Governor of Tamil Nadu hereby makes an exemption in respect of the tax payable by any dealer under the said Act on the sale of -
(1) ................ (2) Cattle feed, namely, hay or straw or rice bran or wheat bran or husk and dust of pulses and grams, but excluding -
(i) brokens of pulses and grams;
(ii) oilcakes; and
(iii) cotton seeds and
2. It is, therefore, necessary first to examine whether the transaction comes within the scope of the exemption. If it does, it would be unnecessary to consider whether it comes within the scope of the First Schedule. The items contemplated by clause (2) of the notification are only cattle feed or rice bran or wheat bran or husk and dust of pulses and grams. Even brokens of pulses and grams are excluded. The notification does not cover the powdered form of grams or gram flour, in this case, horse gram flour.
We would now examine entry 80, which runs as follows :
'(a) Pulses and grams,
(b) Dhalls of pulses and grams (whether whole or split) parched and fried pulses and grams, their brokens and flour, which have not suffered tax under sub-item (a)'.
3. Horse gram powder cannot be brought within sub-item (a) as pulses and grams would not in commercial parlance include brokens of pulses or flour of pulses. It would fall within sub-item (b) as flour of pulses and grams is specifically referred to therein. It is not clear why the words 'which have not suffered tax under sub-item (a)' were added and whether it was intended to avoid double taxation first of grams and pulses and then the brokens and flour too. The second sale of flour also cannot be taxed.
4. The Tribunal in the view it took has not examined this aspect, viz., whether the gram has suffered tax. We hold that the horse gram flour falls within the scope of entry 80(b) and we remit the matter to the Tribunal for examining whether the purchase of horse gram, out of which flour has been made has suffered tax in the first sale. It it has already been taxed, then it would go out of entry 80(b). If the gram purchased had not suffered tax, then it would fall within item 80(b),rand therefore, taxable at the rate of 4 per cent single point. This part of the order of the Tribunal is set aside and the matter remanded for fresh disposal.
5. The sales tax authorities have levied penalty for the belated submission of the return. The return included not only the turnover in horse gram flour, but also other materials. Penalty has been levied only because there has been a delay in the submission of the return. As pointed out in National Insulated Cable Co. of India Limited v. State of Madras  22 STC 475 where a belated return was accepted and an assessment was made on that basis without invoking best judgment assessment, section 12 of the Act does not authorise the revenue to levy penalty. In these circumstances, we do not consider that there is any scope for levy of penalty, and therefore, the penalty was rightly cancelled by the Tribunal.
6. The result is, the revision is partly allowed. No costs.