JUDGMENT

UNTWALIA, J.:—The Commissioner of Sales Tax, Lucknow has filed these four appeals by special leave against the judgment of the Allahabad High Court given in four sales-tax references under the U. P. Sales Tax Act, 1948, hereinafter referred to as the Act.

2. The assessee-respondent owns some tea gardens in the State of U. P. The tea-leaves grown by the respondent in his gardens are sold in the market after being processed and packed. The stand taken on his behalf before the taxing authorities was that the tea-leaves sold by the respondent are agricultural produce grown by himself and, therefore, the sales were not exigible to sales tax. The contention of the assessee was not accepted and the final Revising Authority made four references in respect of the four periods to the High Court on the following question of law:-

"Whether on the facts and circumstances of this case the article ceased to be an agricultural produce and whether the tea produced by the assessee would be exigible to sales tax?"

The High Court has answered the reference in favour of the assessee and against the revenue. Hence these appeals by the department.

3. Under S. 3, the charging section, of the Act it was the turnover for each assessment year determined in accordance with the various provisions of the Act and the Rules framed thereunder, which was chargeable to sales tax. The definition of turnover given in S. 2(i) of the Act at the relevant time stood as follows:-

" "Turnover" means the aggregate amount for which goods are supplied or distributed by way of sale (or are sold) or the aggregate amount for which goods are bought, whichever is greater by a dealer, either directly or through another on his account or on account of others, whether for cash or deferred payment or other valuable consideration:

Provided that the proceeds of the sale by a person of agricultural, horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him shall be excluded from his turnover."

The above proviso was meant to exempt an agriculturist or a horticulturist from the charge of sales-tax in respect of his agricultural or horticultural produce grown by himself in his land in which he has an interest of the kind mentioned in the proviso. The short question which fails for our determination, therefore, is whether the assessees transactions of sale came within the ambit of the proviso. Indisputably and undoubtedly the assessee was an agriculturist, the tea-leaves grown by him in his land were agricultural produce, and he had sold them after processing and packing. In other words the assessee made them marketable and fit for consumption by the consumers and then sold them. If the tea-leaves so sold substantially retained the character of being an agricultural produce, it is plain that the assessees sale will not be exigible to sales-tax. If, on the other hand, the leaves had undergone such vital changes by processing that they lost their character of being an agricultural produce and became a different commodity then the sales made by the assessee were exigible to sales-tax.

4. The High Court has extracted the primary findings of fact recorded by the Revising Authority in its revisional order. As is well-known tea-leaves are plucked from tea-plants as green tea-leaves. The tea-leaves so plucked are not fit for consumption and are not sold in the open market. They are often purchased by big tea concerns from the owners of the gardens and after processing and packing them they (the concerns) sell them in the market. Since in their cases the proviso will not apply the sales will be exigible to sales-tax. But when the producer himself does the same or similar kind of job, then the question arises whether it can be justifiably said that he also cannot take advantage of the proviso?

5. The primary facts as extracted by the High Cour