IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 ST.Rev..No. 18 of 2005 ----------------------------- TA.138/2002 of STAT ADDL.BENCH, KOTTAYAM .................... REVISION PETITIONER/RESPONDENT/REVENUE: -------------------------------------------------------------------- STATE OF KERALA, REP. BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SPL. GOVERNMENT PLEADER SRI.VINOD CHANDRAN. RESPONDENT/APPELLANT/ASSESSEE: ------------------------------------------------------ K.K.IBRAHIMKUTTY, FOREST CONTRACTOR, KAYAMKULAM. BY ADV. DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 15/09/2008, ALONG WITH STRV NO. 74 OF 2005, STRV NO. 85 OF 2005 AND STRV NO.550 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C. N. RAMACHANDRAN NAIR & K. M. JOSEPH, JJ. ---------------------------------------------- S.T. REV. NO. 18 OF 2005 ---------------------------------------------- Dated this the 13th day of October, 2006 REFERENCE ORDER C. N. Ramachandran Nair, J. Question raised is whether fire wood purchased by the respondent from the Forest Department and sold to a Government Company for use as fuel, can be treated as timber falling under Entry 8 of Vth Schedule to the KGST Act. State has filed the S.T.Rev. banking on the Explanation of timber in Entry 8 which reads as follows: “Explanation:II Timber includes all kinds of wood, standing trees, logs, planks, rafters of any size or variety other than those coming under any specific entry in the First Schedule.” 2. According to learned Government Pleader, in view of the inclusive definition of “timber” under Explanation, even fire-wood which is also wood, is covered by the Entry. Tribunal S.T.REV. 18/05 2 has assumed that the Explanation was available only from 1.4.1997, which is incorrect because, Explanation was there in the Statute during the relevant year 1994 - 95. While Government Pleader relied on the decision of this Court in S.T.Rev. No.364/03, senior counsel appearing for respondent relied on the decision of the Supreme Court in Mukesh Kumar Agarwal & Co. v. State of Madhya Pradesh (1988) 68 STC 324) which was considered by this Court in the above Judgment, decision of the Madras Pradesh High Court in P.R. Lakshmi v. The State of Tamil Nadu ((1983) 52 STC 5), an earlier decision of a Division Bench of this Court in Dy. Commissioner v. Western Indian Plywoods (P) Ltd. (1980 KLT 592) and another Judgment of the Madras High Court in Gwalior Rayon Silk Manufacturing (WVG) Company Limited v. State of Tamil Nadu ((1992) 86 STC 569) and contended that even after introduction of the Explanation, fire-wood would not be covered S.T.REV. 18/05 3 by Entry 8 of Vth Schedule to the KGST Act providing for “timber”. In the Division Bench decision relied on by Government Pleader in S.T.Rev. No.364/03, where there are observations in favour of the assessee also, there was a finding that fire-wood would not fall within the expression “timber” in Entry 8 of Vth Schedule to the KGST Act, but for the Explanation. In other words, the Court has taken the view that the Explanation covers fire-wood also. However, there is no detailed discussion before entering a finding in this regard. 3. We are of the view that fire-wood is a popular known item in the market and it was in the Ist Schedule for some time. However, “fire-wood” is not dealt with in the Explanation. Therefore, a detailed consideration is required as to whether “fire-wood” is also covered by any of the items referred to in the Explanation. Since the Division Bench has not considered this aspect in detail, though taken a view, we feel the matter should S.T.REV. 18/05 4 be considered by a Full Bench of this Court. We, therefore, refer this case for decision on this question by a Full Bench. Registry will place this case before The Honourable The Chief Justice for orders on posting. C. N. RAMACHANDRAN NAIR, JUDGE K. M. JOSEPH, JUDGE kbk.