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TMI Blog1990 (6) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ght charges in respect of the wood purchased as forming part of the purchase turnover of the wood for purposes of section 7-A of the Tamil Nadu General Sales Tax Act, 1959. Since there were some defects and deficiencies in the maintenance of their accounts, an addition of 1 per cent amounting to Rs. 4,190.67 was also made. A further sum of Rs. 1,447.23 was also subjected to tax which, according to the assessing authority, constituted purchase turnover of timber waste. The plea of the assessee that what they purchased is "soft wood" liable to tax only at multi-point rate and not under single point under entry 84 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, was also rejected. On appeal by the assessee, the first appellate authority sustained the addition of 1 per cent set aside the levy of tax on a turnover of Rs. 1,447.23 at 4 per cent multi-point on what is called as "timber waste" which the appellate authority held to fall under "firewood" and rejected the contentions relating to taxability of the commodity under entry 84 as well as the contention that cutting and freight charges do not form part of the sale price as they are post-sale expenses. On furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry 84. So far as the claim relating to cutting and transport charges is concerned, from the purchase turnover the assessee appears to have confined his argument to dispute the assessment on a turnover of Rs. 1,73,286 only consisting of Rs. 1,00,701 towards cutting charges and Rs. 72,585 towards transport charges. The appellate authority found that there was no evidence to show that the cutting charges and transport charges were incurred subsequent to the purchase in all cases and that only in cases where the assessee had used their own delivery notes in form XX for the transport, it could be held that the transport was made by them subsequent to the purchase at the site and that in respect of items where there was no such proof of transport subsequent to the purchase by the assessee, the appellate authority held that the vouchers produced by them cannot be taken to be conclusive evidence as they were only prepared by the assessee themselves. The appellate authority also considered the impact of the decision reported in Commissioner of Sales Tax v. Gill Company Ltd. [1974] 33 STC 536 (MP) and distinguished the said case from the case on hand on the ground that unlike the case r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fall under the category of "timber". In respect of the second submission on behalf of the State, the counsel for the assessee submitted that the conclusions of the Tribunal on the issue are findings of fact which cannot be assailed in this proceeding before this Court. 5.. We have given our careful consideration to the issues raised before us. So far as entry 84 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, is concerned, omitting the explanation thereto, the description of the goods reads as "timber and bamboo". The word "timber" came up for consideration in various contexts and situations before several High Courts and the Supreme Court of India. We feel it necessary and sufficient to refer to only some of them which have a direct bearing on the issue now for consideration before us. In a decision reported in Ramaswamy v. State of Andhra Pradesh [1973] 32 STC 309 the question of construction of the word "timber" as in item 63 of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957, came up for consideration before a Division Bench of the Andhra Pradesh High Court. The assessee therein purchased logs of wood and after sawing and cutting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1969] 24 STC 101 (MP) and Ramaswamy v. State of Andhra Pradesh [1973] 32 STC 309 (AP) referred to above and quoted them with approval. At page 262 of the Report, the Supreme Court specifically referred to and considered the view expressed by the Andhra Pradesh High Court that in dealing with matters relating to the general public, statutes are presumed to use words in their popular rather than their narrowly legal or technical sense, and that as the provision levying a tax on timber was directed to deal with a matter affecting people generally, as timber is in common use, the word "timber" would have the same meaning attached to it as in the common and ordinary use of language. The definition of the term "timber " often quoted in many of these decisions including that of the Supreme Court refers "timber" as "wood used for or suitable for building (as a house or boat) or for carpentry or joinery." In considering the word "timber" conjointly with the word "plank", the Supreme Court expressed the view that the exact thickness and width of a plank may be of importance in technical specifications but in ordinary parlance planks would be flattened and smoothed timber and that such flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d wellrecognised legal connotation and is nomen juris. It has also a popular meaning as a word of everyday use. In this case, the two meanings of 'timber', the legal and the popular, coalesce and are broadly subsumed in each other." The Supreme Court also considered the usefulness of "user-test" in the following words: "Here again, pushed to its logical conclusions, the reasoning incurs 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 in 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." Ultimately in paragraphs 6 and 7, the Supreme Court concluded the question as hereunder: "We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid down. The point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly advert to the materials on record and draw correct legal inference from the same. Both the assessing authority and the first appellate authority in particular dealt with this issue in detail. But the Tribunal readily assumed, after merely referring to the plea of the assessee, that there is no positive material to show that the cutting, loading, unloading and other transport charges have all been incurred only by the sellers. The Tribunal further observed that in the absence of any material to show that the sellers, the owners of the trees, had received besides the value of the wood involved cutting, loading, unloading and lorry freight charges, it is difficult to uphold the case of the Revenue that the purchase turnover would include those charges. In our view, the Tribunal really missed the vital fact as to whose obligation was it to produce such material and to substantiate the case for exclusion. Unless the assessee produced sufficient and acceptable material to substantiate the fact that they purchased the wood by number of trees, arranged for their cutting and got them transported under the required and prescribed forms for transportation or they were able to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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