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TMI Blog2001 (12) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ' objection that casuarina was firewood in respect of which the Government had by its notification of 4th March 1974, issued under Section 17(1) of the Act granted exemption, and therefore no purchase tax could be levied, was overruled by the assessing officer, whose order was upheld in appeals, preferred by the dealer to the appellate Tribunal and to the Special Taxation Tribunal. 3. Learned counsel for the petitioner submitted that `Casuarina' is indeed firewood and in support of that submission he invited our attention to several publications dealing with `Casuarina'. In the book "Casuarinas" by Dr.N.S.Subbarao and C.Rodriguez Barrueco published in the year 1995, the authors being acknowledged experts in their field of study, in the Chapter "Uses and Economics" it is stated that the bulk of Casuarina wood is used as fuel in India and China. In the preface by the authors, it is also noted that there have been many uses for Casuarina wood apart from its utility as an ideal source of fuel; that Casuarinas are excellent for landscaping, sandbinding, windbreaks in agroforestry and above all rural house construction requiring inexpensive wood; that Casuarinas are regarded as multi p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulp wood. Under the head "Domestic and Other Uses", it is stated that Casuarinas the world over became important with the advent of the energy crisis, and it is estimated that 85% of the wood harvested in developing countries is used for fuel of which Casuarina forms a significant component and that the most universal use of Casuarinas is for fuel, as the wood is dense and burns slowly with great heat and no smoke and further that it can even be burnt when green. 6. Reference was also made to the publication, "Casuarina Production and Marketing in Tamil Nadu" published by the Forest College and Research Institute, Coimbatore, in which it is stated that the trees are cut into different grades like building poles, firewood and that the top portion of the trees are called as "Millers" and that approximate specifications adopted for Casuarina used as centering poles is 10 12 ft height with 3" girth at the top and 5 to 6" girth at the bottom; 15 to 25 ft. height for scaffolding poles; 3 ft. length for firewood and 3.5 ft. length for pulpwood billets. It is also mentioned in that study that about 10% of the Casuarinas grown in Villupuram District of Tamil Nadu is bought by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the poles are separated, cannot be regarded as timber with the sense, size and utility implicit in the idea of timber. The Court also observed that difference of degree can bring about difference of kind but that no test of general validity applicable to or governing all cases can at all be laid down. 9. Casuarina like eucalyptus is a tree. The fact that it is a tree and it's poles are used for scaffolding or centring purposes, and the tree itself is grown in certain areas with a view to improve the environment, would not render all parts of the tree into timber. Timber and firewood has implicit in them a reference to their use. Part of the same tree can be regarded as timber, while some other parts may be fit for use only as firewood. Even the difference in degree such as length and breadth may bring about differences of kind. To conclude that a whole species of tree is either timber or firewood, therefore, does not appear to be permissible. The actual use to which a specific part of the tree is put is however not determinative of the category into which it is to be placed whether as timber or firewood. 10. The question would then be as to whether that part of the Casuarina t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was decided on 21.11.1988. The apex Court set aside that judgment in a brief order in which it was stated that in view of the decision of that Court in the case of Mukesh Kumar Agarwal, the judgment of the High Court is set aside. 13. The Kerala High Court itself had much earlier, in the case of Deputy Commissioner vs. Western India Plywoods (P) Ltd., 46 STC 331, held that the predominant or ordinary use of the article would be decisive for the purpose of determining it's nature, and the fact that it is put to use for some other purpose also would not have any impact in it's proper classification. The Court upheld the claim of a manufacturer of hardboard who had used the wood purchased by it as raw material, that it was entitled to concessional rate of tax, as the predominant and ordinary use of the wood purchased by it was only as firewood. 14. Learned counsel for the Revenue invited our attention to the decision of this Court in the case of A.H.K. Company vs. The State of Tamil Nadu, 46 STC 117, in which it was held that specification for the supply of the goods involved in that case indicated that neither party intended that the goods should be sold or bought only as fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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