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TMI Blog1980 (7) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... the conflict, if any, appearing therein. 3.. In the statement of the case drawn up by the Tribunal, it has been indicated: "..........In this case also there is no clear picture as to the different sizes and shapes to which the logs were transformed by sawing them in the saw mill. All that is available on record is that the logs which were extracted from the forest were converted into different shapes and sizes by sawing them in the saw mill. It was not specifically found whether the different shapes and sizes of timber were meant for manufacture of furniture, door frames, windowframes, doors, windows and the like." Embarassed by this categorical finding of fact, the learned standing counsel asked us to call upon the Tribunal to submit a supplementary statement of facts after investigation. We do not, however, find any justification to do so at this belated stage. On the facts stated, there is no scope for the submission of the learned standing counsel that the logs had undergone a change and had transformed into a new commodity different from what had been purchased. It is quite possible that the logs were cut into different sizes for making transport, storage or the like c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer." By Orissa Act 4 of 1978, clause (ii) has been amended and the amendment in the proviso has been made retrospective, but the 1978 amendment is not material for our purpose. Under section 5(2) for arriving at the taxable turnover, certain deductions from the gross turnover are admissible. Since under the Act, a single point tax has been accepted, sales to registered dealers are exempt from taxation, provided the purchasing dealer gives a declaration that he would resell the goods within Orissa. The selling dealer could recover the sales tax payable by him from the purchasing dealer, but as the goods in question have been declared to be sold in Orissa, the single point of collection of tax is deferred. As long as the particular goods pass from the hands of one registered dealer to another subject to the declaration as stipulated by statute, the taxable event is deferred. If the goods are not resold the liability to pay tax accrues under the proviso in the hands of the last purchasing dealer who contravenes the terms of the declaration and in his hands the tax due on his purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific guideline can be indicated to meet every situation, inasmuch as very often pressed by competition, commercial viability and trade adventure, businessmen allow their goods to undergo variations in form and shape. As a broad guideline, it can, however, be indicated that as long as the consumer is prepared to accept one commodity as a substitute of the other without reservation, there is no substantial alteration in quality and there has been no conversion in form and shape so as to divert goods amenable to various uses to specific use only, the proviso would not be attracted. 6.. In the case of State of Orissa v. Rajani Timber Traders[1974] 34 S.T.C. 374., the assessee had purchased round timber logs and had converted them into sized timber. The applicability of the proviso came up for consideration. This Court held that the assessee had given an undertaking in the declaration that he would resell the timber as such in Orissa, but he got it processed to sized timber and sold the commodity in a shape different from what he had purchased. "Timber" is a generic word meaning "trees" felled or standing to be used for building, as indicated in "Words and Phrases", Volume 41, at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o observe: "........ A very long piece of log may be cut into different pieces. If the pieces after cutting still remain long so as to be used as beams, pillars and such similar uses, the cut pieces would still be called timber. To illustrate, a timber originally 60 feet long is cut into three pieces of 20 feet each. Each of the three pieces retains sufficient length to be used as beams or pillars and would be still treated as timber in common parlance. Take another illustration. After purchase of some timbers a dealer for the sake of convenience of transport may cut a portion from each end of the timber, may peel off the barks and polish the joints at some places. of those timbers. Even after all these operations have been performed, the logs of wood would still be termed as timber." Obviously the learned Chief justice had put the user test. There may be instances when unusually long size timber would be cut into fairly long size timber which would be still maintaining its generic quality and would not become amenable to specific use only. There can be no dispute that even then it would continue to be timber. Timber cut into small sizes, for instance, a sixty feet long log w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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