1998 INSC 0868
                                                    State of Kerala

                                                           Vs

                                       Tropical Plantation Ltd. and Others

                                     Civil Appeals Nos. 2428-2449 of 1997

                                         (S. P. Bharucha, V. N. Khare JJ)

                                                      26.11.1998

                                                        ORDER

1. Earlier judgments of the Kerala High Court took the view that rubber trees were not timber [sic
see (1989) 73 STC 336, 340 (para 5) were timber] and were, therefore, subject to the levy of sales
tax under the Kerala General Sales Tax Act, 1963. When the later of these two judgments was
brought before this Court by way of a petition for special leave to appeal, this Court, while
dismissing the petition, observed that it would "be open to the petitioner in future years to place
adequate materials to establish that rubber trees did not constitute timber...". In the present matters
the respondent-assessees placed such material before the Kerala Sales Tax Appellant Tribunal and
relied upon the afore-quoted observation. The Tribunal took the view that it was bound by the
earlier judgments and, therefore, did not consider this material. The respondent-assessees moved the
High Court in tax revision cases. The High Court considered the material and reached the
conclusion that standing rubber trees were not timber and, therefore, not exigible to sales tax under
the provisions of the said Act.

2. There can be no doubt that, in the circumstances, the Tribunal should have considered the
materials that were placed before it and should have decided, as a matter of fact, whether rubber
trees were timber. That error should have been cured by the High Court by remanding the matters to
the Tribunal to consider the material and arrive at a finding thereon. It should not have considered
that material itself; the final fact-finding body being the Tribunal, the finding as to whether rubber
trees were timber should have been left to be decided by the Tribunal.

3. We think, in the circumstances, that it is appropriated to set aside the judgments and orders under
appeal and remand the matters to the Tribunal. The Tribunal shall not consider itself bound by the
earlier judgments of the Kerala High Court. It shall consider such materials/evidence as are placed
before it by the assessees and by the Revenue and shall decided, based thereon, whether rubber trees
are timber for the purposes of the levy of sales tax under the said Act. The Tribunal shall give to the
parties the opportunity to produce additional material/evidence. It shall decided the matters within
six months from today.

4. The appeals are allowed accordingly. No order as to costs.