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TMI Blog2008 (9) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... esorted to, since the facts in the instant case, clearly demonstrate that the commodity purchased and sold is only "firewood", and therefore, in our view, the Appellate Tribunal was justified in classifying the commodity as a residuary item falling under entry 156 of the First Schedule to the KGST Act. Therefore, we are of the view that the Tribunal has not committed any error on facts which would call for interference. Accordingly, keeping in view the facts situation which is not disputed by either side, that, the assessee had sold the wood to the purchaser, namely, a Government company only as "firewood" and not as timber, while sustaining the orders passed by the Tribunal, we reject these revision petitions. X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1963. After unsuccessful attempt before the first appellate authority, the assessee was before the Sales Tax Appellate Tribunal. The Appellate Tribunal is of the view that the sales turnover requires to be taxed only under entry 156 of the First Schedule to the KGST Act and not under entry 8 of the Fifth Schedule as has been done by the assessing authority. In S.T. Revision Case No. 85 of 2005, the assessing authority while completing the assessment of the respondent/assessee for the assessment year 1996-97, has assessed the purchase turnover of firewood under section 5A of the KGST Act at 12.5 per cent, treating it as an item falling under entry 8 of the Fifth Schedule and the findings of the assessing authority is confirmed by the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for us to notice the undisputed facts. They are, the respondents have purchased firewood from the Forest Department and have sold to a Government company for use as fuel. The assessing authority had treated the wood so purchased by the respondents herein as an item falling under entry 8 of the Fifth Schedule to the Kerala General Sales Tax Act, 1963. The respondents in these revision petitions, being aggrieved by the assessment order so passed by the assessing authority, had carried the matter before the first appellate authority who in turn had rejected the appeals. The assessees were before the Tribunal by filing separate appeals. The Tribunal is of the view that the wood sold by the assessees is firewood and, therefore, requires to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above facts, we are of the view that the contentions raised by the appellant deserve consideration. So we direct the assessing authority to treat firewood sold to M/s. Travancore Sugars as an item falling under entry 156 (residuary entry) of the First Schedule. Admittedly, the appellant purchased the entire firewood from the Government Forest Department by paying first-point tax and so the appellant is not liable to pay tax." While disposing of these revision petitions, we are not entering into the question whether the wood that was sold by the respondent-assessee is timber or not. In the instant case, the wood that was sold by the assessee to a Government company was for the purpose of using it as a fuel. This factor is not in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se." We are conscious of the views expressed by various courts that the user test is only 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. In the facts and circumstances of this case, in our view, the other tests which are commonly applied for interpreting the taxing entry need not be resorted to, since the facts in the instant case, clearly demonstrate that the commodity purchased and sold is only "firewood", and therefore, in our view, the Appellate Tribunal was justified in classifying the commodity as a residuary item falling under entry 156 of the First Schedule to the KGST Act. Therefore, we are o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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