V. Ramaswami, J.
1. For the assessment year 1967-68 the assessee did not submit any return on the ground that he was exclusively dealing in the product of country oil chekkus. On a surprise inspection certain bills were recovered of which one of them showed a receipt of Rs. 162 for groundnut kernel. The assessing officer was of the view that this slip related to a sale transaction of groundnut kernel and that, therefore, the assessee would not be a dealer dealing exclusively in the products of country chekkus and that therefore the exemption under Section 17 of the Tamil Nadu General Sales Tax Act, 1959, in respect of sale of such products of country chekkus by persons owning the same is not available to the petitioner. He thereafter proceeded to assess him on an estimated turnover. He also levied a penalty of 1 1/2 times the tax due under Section 12(3) of the Act.
2 .On appeal the Appellate Assistant Commissioner considered that the anamath slip recovered could not be considered to be a sale bill and that it appeared to be a reference to the products of groundnut kernel and not a sale of groundnut kernel itself and, in that view, set aside the order of assessment. The Board of Revenue took up suo motu revision against this order and after following the prescribed procedure ultimately came to the conclusion that the slip recovered related to a sale of groundnut kernel worth Rs. 162 and that, therefore, the exemption was not applicable. In that view he set aside the order of the Appellate Assistant Commissioner and restored the assessment order, but all the same reduced the penalty to Rs. 1,500 from Rs. 3,452. It is against this order of the Board this present appeal is filed.
3. If a person owning country chekkus is dealing exclusively in the products of such chekkus, as the products are completely exempt from payment of sales tax, he need not file a return. Only if he is a dealer in any of the taxable goods, the exemption is taken away and he is liable to submit a return and could be assessed on the entire turnover including those products of the country chekkus. It is therefore, necessary, in order to disentitle persons like the assessee to show that they were not exclusively dealing in the products of country chekkus. We are not proceeding on any basis of onus either on the part of the revenue or the assessee. But, suffice it to say, that in this case the solitary instance covered by the slip, even assuming to be a sale, has not been shown to be dealt with as a dealer in groundnut kernel. So far as the assessee was concerned, he was flatly denying that it referred to any sale transaction, much less a sale transaction in the course of his business. There being no evidence that the sale, even assuming it to be a sale, was in the course of business of the assessee in groundnut kernel, the Board of Revenue was not legally correct in revising the order of the Appellate Assistant Commissioner. The order of the Board of Revenue is, therefore, liable to be set aside and it is accordingly set aside. The assessee will be entitled to his costs. Counsel's fee Rs, 250