GUR SHARAN LAL, J. - (1.) THIS is a reference under section 11(3) of the U.P. Sales Tax Act made by the Additional Revising Authority, Sales Tax, Allahabad, on the application of the Sales Tax Commissioner, U.P. The opposite party, M/s. B. M. Wood Works of Allahabad was assessed by the Sales Tax Officer to sales tax for the assessment year 1964-65 on a turnover of Rs. 1,11,600.65 fetched by the sale of chir (pine) packing boxes. The rate applied was 3 per cent. treating the packing boxes as products of timber. In the appeal filed by the said opposite party its contention was that the packing boxes could not be regarded as products of timber and should have been assessed at the rate of 2 per cent. only applicable to unclassified items. The contention was not accepted and the appeal was dismissed. On a revision being filed by the said opposite party, the revising authority aforesaid held that the packing boxes could not be regarded as products of timber and he, therefore, allowed the revision and reduced the tax by applying the rate of 2 per cent. The applicant, namely, the Commissioner, Sales Tax, U.P., thereupon applied for reference being made to this court. The question referred by the Additional Revising Authority is : "Whether boxes made of chir are timber products as contemplated by Notification No. ST-3393/X-1012-1962 dated 1st July, 1962 as amended by Notification No. ST-6879/X-1012-1962 dated 19th January, 1963 ?"
(2.) IT may be noted that by the notification of 1st July, 1962, referred to in the question the item notified for levy of sales tax at 3 per cent. was "timber, bamboo and their products". After the amendment by the notification of 19th January, 1963, referred to in the question, this item came to have the following form : "Timber (that is to say, the wood of sheesham, teak, sal, sakhu, haldu, tun, mango, jamun, nim, goolar, seeras, deodar, chir (pine) and mahua trees, whether growing or cut), bamboo and their products." The amendment is, firstly, the effect of making it very clear that timber means wood, be it of a tree cut or a tree still standing and it cannot mean a growing tree as such. The definition of goods in section 2, clause (d), of the U.P. Sales Tax Act within the scope of which the definition of timber in the notification must come also makes this clear. Under the definition, goods include growing crops, grass, trees attached to or fastened to anything permanently attached to the earth, but which, under the contract of sale, are agreed to be severed. The sale of a tree without an agreement for its severing will not be a sale of "goods". The sale of wood of a tree agreed to be severed will be sale of "goods". So the product of timber contemplated in the notification must be the product of wood and not of a growing tree as such. Thus leaves, fruits and flowers of a tree will not come within the purview of products of timber though bark will be a product of timber. The second thing which the amendment has done is to confine timber to the wood of certain classes of trees including chir (pine), which means that packing boxes of chir will be covered by the notification provided they can be regarded as products of wood of chir or pine trees.
(3.) THE material question for consideration, therefore, is whether packing boxes made by assembling planks of chir wood with the help of nails can be regarded as products of chir wood. In its revisional order the Additional Revising Authority observed as follows, in holding that packing boxes cannot be regarded as products of timber : "The word 'products' had not been defined in the law. According to the Chamber's Twentieth Century Dictionary, it means a thing produced; a result; a work; offspring; a quantity got by multiplying. These meanings suggest a direct connection between the thing and its product. The thing must be productive before it can have a product. In other words, something which naturally and directly grows out of another thing can alone be called a product of that other thing. Timber has been defined in the notification itself as the wood, growing or cut, of certain specified trees. Therefore, a product of timber must relate to the productivity of timber and must also be a thing growing naturally and directly out of the wood of those specified trees. The boxes in question did not grow directly or naturally out of timber. They were made of timber by application of artificial means." ;