Case: Mukesh Kumar Aggarwal &amp; Ors Vs. State Of Madhya Pradesh &amp; Ors

that the finding that the goods was Timber appears to have been reached as a necessary consequence and logical corollory of the goods not being fire-wood: If the wood is not "fire-wood", it need not necessarily and for that reason alone be Timber. All wood is not timber as, indeed, all wood is not fire-wood either though perhaps it may not be incorrect to say that both firewood and Timber are wood in its generic sense.The High Court further reasoned: " ... It has also been mentioned that timber is obtained by cutting standing trees. It may be hard wood timber or soft wood timber. Eucalyptus trees are covered by soft wood timber .. " " ... The petitioners offered to purchase the goods which could be used for manufacture of woodware, furniture, etc. as well as manufacture of Pulp. The petitioners deal in timber ......Here again, pushed to its logical conclusions, the reasoning incur s the criticism of proceeding to determine the nature of the goods by the test of the use to which they are capable of being put. The user-test is logical; but is, again, inconclusive. The particular use to which an article can be applied i n the hands of a special consumer is not determinative of the nature of the goods. Even as the description of the goods by the authorities of the forest- department who called them varyingly as eucalyptus fuel- wood eucalyptus wood-heap etc. is not determinative, the fact that the purchasers were dealers in timber is also not conclusive.The High Court also observed:"..... The length of the pieces is not relevant criteria to determine whether the wood is timber or not. The goods A offered for sale were eucalyptus wood- stacks .....Length is, no doubt a relevant consideration; but it is a relative concept and associated with the idea of utility. A piece of rope, it is said, is itself a rope, provided It serves the purpose of one. 6. The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept this submission. 8. In the result, these appeals are allowed in part and the finding of the High Court that the goods in question fall within and attract entry 32 A of Part II of Schedule II of the Act is set aside and the matter is remitted to the High Court for an appropriate decision as to which other entry the goods in question attract. The appeals are disposed of accordingly. 9. We might advert to yet another submission of Sri Sanghi. He submitted that consistent with the finding that the goods do not attract tax at 16% under the said entry 32A respondents cannot retain the tax already collected at 16%. Learned Counsel submitted that even if the goods are said to fall under the Residuary entry, the rate of tax would only be 10% and that respondents, accordingly, should be directed to refund to the appellants sums equivalent to 6% of the tax, wherever tax at 16% has been collected, without waiting for a decision on remand as indeed, the re would be no prospect of the goods attracting tax at a rate higher than 10% now that entry 32 A is held inapplicable. This, in our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered at

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]3. Though, the notification inviting tenders and certain other documents appear to describes the goods variously as "eucalyputs fire-wood stacks., "eucalyptus wood stacks", Nilgiri fuel wood etc., the nomenclature is not determinative or conclusive of the nature of the "goods" which will have to be determined by the application of certain well-settled principles, guiding the matter.In its popular sense, timber is understood to be Imarathi-Lakdi. In a popular-sense Timber has certain association of ideas: as to its size, stability, utility, durability, the unit or measure of quantity and of valuation etc. The question is whether by the standards of these popular connotations, the wood-stacks or wood-heaps sold to, and purchased by, the appellants can be held to answer the popular notions of Timber. When standing-timber, is sold as uncut tree different considerations may arise.The nature of the "wood" sold is described in the letter, dated, 30.5.1985, addressed by the Divisional Forest officer. The subject matter of the sale has been referred to as Nilgiri fuel-wood. The wood was offered for sale in stacks of the size of l x 1. 25 x 2 mtrs. With each piece of a length of 1.25 meters and a girth, at the thinner end, of not less than 10 cms. They were sold not by volume or by the number of pieces. The wood was offered with a particular kind of user in mind, viz, as a source of industrial-raw material for pulp in the manufacture of synthetic fibre. As pointed out by the High-Court, in the returns filed by the respondents, it was mentioned that eucalyptus-plantation was a recent development and promoted with the specific purpose for use in specifically in the preparation of pulp and sold throughout the state with this specific object.Respondents in their endeavor to controvert appellants contention that the wood sold was "fire-wood" went on to say that while stacks of fire-wood of similar sizes fetch prices between Rs.20 to Rs.80 each, the stacks of the eucalyptus- wood on the other hand, fetch to Rs.300 to Rs.600 per stack and that, therefore, nobody uses eucalyptus as "fire-wood". The High Court, felt persuaded to the view that the wood sold did not admit of being described as "fire-wood".The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept thiscontention did not find favour with the Highin our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered atn our opinion is a reasonable request and requires to be accepted.