JUDGMENT V. V. KAMAT, J. In these twenty-three tax revision cases, the two assessees under the Kerala General Sales Tax Act, 1963, are M/s. Tropical Plantations, Kottayam and M/s. Padinjarekkara Estates Limited, Kodimatha, Kottayam. The particulars of all these twenty-three tax revision cases would be available from the following tabulation : Tropical Plantations Limited : ------------------------------------------------------------------------ Case No. Assessment Particulars Taxable Sales tax AST year turnover (1) (2) (3) (4) (5) (6) ------------------------------------------------------------------------ 17 of 1995 1974-75 Tea 5% 12,45,337 62,267 Tea sale expenses 5% 22,985 1,149 Sale of rubber trees 4% 2,82,930 11,318 Dunlop cart 4% 1,301 52 18 of 1995 1975-76 Tea 5% 13,79,342 68,967 Tea sales expenses 5% 27,947 1,397 Tree sales 4% 4,08,870 1,635 19 of 1995 1976-77 Tea 5% 21,82,971 1,09,149 Tea sale expenses 5% 41,391 2,070 53 of 1995 1981-82 Tea (excluding expenses) 9,46,971 47,349 4,735 from 1-4-81 to 15-9-81) Do. from 12,47,631 31,191 3,199 16-9-81 to 32-3-82 - 2.5% Tea sale expenses 5% 15,322 766 77 (from 1-4-81 to 15-9-81) Do. from 12,47,631 31,191 3,199 16-9-81 to 32-3-82 - 2.5% Tea sale expenses 5% 15,322 766 77 (from 1-4-81 to 15-9-81) Do. from 20,187 505 51 15-9-81 to 31-3-82 Rubber tree sales 4% 18,55,105 74,204 7,420 54 of 1995 1980-81 Tea 5% 18,89,531 94,477 Tea sale expenses 5% 32,375 1,619 Rubber tree sale 4% 2,31,000 9,240 55 of 1995 1984-85 Tea sales 5% 1,83,651 9,182 1,377 5% Exemption claimed for 18,40,863 92,043 13,806 5% tea sold at Cochin auction 5% Rubber tree 10,17,500 50,875 7,631 5% sales 5% 56 of 1995 1973-74 Tea 5% (excluding sale expenses) 9,54,896 47,774 Tea sales expenses 5% 21,895 1,094 Sale of rubber trees 3% 1,55,980 46,794 57 of 1995 1977-78 Tea 5% 32,35,258 1,61,763 Tea sale expenses 5% 59,454 2,973 Tree sales 4% 1,75,200 7,008 58 of 1995 1986-87 Tea sold 5,28,329 26,416 5,283 20% through auction (exemption claimed 5%) Rubber tree 12,78,300 63,915 12,783 sales 5% Rubber tree 25,000 1,250 250 stumps 5% 59 of 1995 1985-86 Rubber tree 30,54,450 1,52,723 30,545 20% sales 5% Rubber tree 26,500 1,325 265 20% stumps 5% 60 of 1995 1978-79 Tea 5% 24,00,900 1,20,045 Tea sales expenses 5% 45,849 2,292 Tree sales 4% 3,25,300 16,265 61 of 1995 1979-80 Tea 5% 23,71,960 1,18,598 (excluding sale expenses) Tea sale expenses 40,388 2,016 Tree sale 4% 3,76,900 15,076 62 of 1995 1987-88 Tea (exemption 4,93,724 24,686 4,937 20% claimed but not allowed) 5% Rubber tree 65,220 3,261 652 20% sale 5% Turnover tax at 5% 41,15,212 20,716 63 of 1995 1982-93 Tea sales 26,28,566 65,714 6,571 (excluding sale expenses) 2.5% Tea sale expenses 2.5% 40,666 1,017 102 Rubber tree 14,10,400 56,416 5,642 sales 4% 96 of 1996 1983-84 Tea sales 17,02,406 42,560 4,256 (excluding sale expenses) 2.5% Tea sales 2.5% 27,92,989 1,39,649 13,965 Tea sale expenses 2.5% 57,522 1,438 143 Tea sale expenses 5% 94,372 4,719 472 Rubber tree sales 4% 18,06,680 72,267 7,227 ------------------------------------------------------------------------ Padinjarekkara Estates Ltd. : ------------------------------------------------------------------------ (1) (2) (3) (4) (5) (6) ------------------------------------------------------------------------ 64 of 1995 1976-77 Turnover on sale of 31,867 1,275 rubber trees 65 of 1995 1982-83 " 7,66,035 30,641.20 66 of 1995 1978-79 " 43,795 1,752 67 of 1995 1980-81 " 5,24,370 20,975 68 of 1995 1981-82 " 5,09,621.70 20,384.80 69 of 1995 1977-78 " 56,031.25 2,241 70 of 1995 1984-85 " 7,03,170 28,769 71 of 1995 1987-88 " 2,52,000 12,600 ------------------------------------------------------------------------ It would be seen that as far as the assessee M/s. Tropical Plantations Limited is concerned, the assessment proceedings from 1973 up to 1988 are before us and are covered by fifteen tax revision cases. Similarly, as far as the assessee M/s. Padinjarekkara Estates Limited is concerned, there are eight tax revision cases and they relate to the assessment years 1976-77 up to 1987-88. 2. When out of these tax revision cases, T.R.C. No. 96 of 1996 relating to the assessment year 1983-84 came up before us on October 3, 1996, on the submission of the learned Senior Counsel for the assessees, all these twenty-three tax revision cases came to be clubbed together by our earlier order with a further direction to place them in a group on October 29, 1996. The tax revision cases were heard extensively yesterday and today. The characteristic fairness of the learned Senior Counsel confined the controversy to the following two questions of law : "(i) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the standing rubber trees sold by the assessee are timber exigible to tax ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the standing rubber trees will come within the expression of timber and so excluded from 'agricultural produce' within the meaning of explanation 1(ii) of section 2(xxvii) of the Kerala General Sales Tax Act ?" making it clear that in view of the meagre amounts involved with regard to question Nos. 3 and 4 relating to the sale expenses and expenses relating to sale of dunlop cart and livestock and miscellaneous receipts, the said aspects need not be considered as not having been pressed on instructions obtained in regard thereto before us. 3. Thus, the only aspect that we would consider would be whether the standing rubber trees sold by the assessee could be understood as timber exigible to tax because the standing rubber trees would satisfy the requirements of the expression "timber" and would be consequently excluded from "agricultural produce" within the meaning of explanation 1(ii) of section 2(xxvii) of the Kerala General Sales Tax Act, 1963. It would be necessary to reproduce the relevant statutory provision of section 2(xxvii) and explanation 1(ii) thereto. It would be necessary to reproduce the relevant statutory provision of section 2(xxvii) and explanation 1(ii) thereto. They are as follows : "(xxvii) 'turnover' means the aggregate amount for which goods for either bought or sold, supplied or distributed by a dealer, either directly or through another, on his own account or on account of other, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover. Explanation I. - 'Agricultural or horticultural produce' shall not include : (i)............... (ii) tea, coffee, rubber, cardamom or timber." In other words, "turnover", as statutorily defined, would have to be under stood as the aggregate amount for which goods are either bought or sold, supplied or distributed by a dealer, whether for cash or for deferred payment or other valuable consideration. There is a proviso to mean that the proceeds of sale by a person of agricultural or horticultural produce with the necessary statutory qualifications in regard thereto shall be excluded from his turnover. In other words, if it is found that the sale is by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has interest whether as owner, usufructuary mortgagee or otherwise, such sale proceeds shall be excluded from his turnover. It is the explanation that specifies "agricultural or horticultural produce" and it would be found that tea, coffee, rubber, cardamom or timber would not be considered as agricultural or horticultural produce. In other words, for the purpose of deciding the questions, we will have to consider as to what is sold by the assessees during the above assessment years could be considered as "timber or agricultural produce or otherwise". This is because the agricultural or horticultural produce is statutorily to the excluded from his turnover. 4. The petitioners are rubber planters in the context of the question for consideration and consequent decision, and are assessees under the Kerala General Sales Tax Act on the files of the Assistant Commissioner (Assessment), Special Circle, Sales Tax Office, Kottayam. The assessees entered into agreements for sale of the standing rubber trees. 4. The petitioners are rubber planters in the context of the question for consideration and consequent decision, and are assessees under the Kerala General Sales Tax Act on the files of the Assistant Commissioner (Assessment), Special Circle, Sales Tax Office, Kottayam. The assessees entered into agreements for sale of the standing rubber trees. Some of the common features of these agreements would be necessary to be born in mind. The agreements mention that rubber trees planted many years back have become old and very uneconomical. The agreements also mention that the trees are being sold with a view to replant rubber in the said areas. The agreements also specify that the rubber trees were standing on the land of the assessees. The agreements provide a further period specified for uprooting and removal of the trees in view of the time required for uprooting the trees, the difficulties in transportation, labour problem, etc. The agreements further provide for the modes and the time periods relating to execution thereof. The assessees contended that the wood of rubber trees is only used as fuel and is never used for construction or building purposes or for repairs to the structures. As a consequence, it was contended that the trees cannot be considered as "timber" within the meaning of section 2(xxvii), Explanation I(ii) of the Kerala General Sales Tax Act, 1963. It is contended that the rubber trees are purely an agricultural produce and, therefore, rubber trees cannot be considered to be "timber" within the statutory provisions of the Kerala General Sales Tax Act, 1963. 5. The assessing authority, in all these matters, considered the question and held that the sales of rubber trees are liable to tax. In reaching this conclusion, the assessing authority placed reliance on the decision of this Court in [1979] 43 STC 438 (George P. Mathew v. State of Kerala) to the effect that the contract to cut and sell trees standing on the land was the sale of goods or of movable property and that would attract the relevant definitions in the Act, consequently holding that the assessee, therefore, was rightly assessed to sales tax. 6. The proceedings before the first appellate authority, the Additional Deputy Commissioner (Appeals), AIT & ST, Ernakulam, also considered the question. 6. The proceedings before the first appellate authority, the Additional Deputy Commissioner (Appeals), AIT & ST, Ernakulam, also considered the question. It was contended that the sales could be subjected to tax only from April 1, 1974 in the light of the amendment of the definition of "business" from that date by amending Act 22 of 1974 and it was in this connection that the decision of this Court in [1979] 43 STC 438 (George P. Mathew v. State of Kerala) was relied upon. The said authority also relied upon the said decision of this Court to reject the contention of the assessee. In the process, the proceedings came to be remitted to ascertain as to whether the tree in question are spontaneously grown trees or not and allow the claim in case they are spontaneously grown. 7. The proceedings travelled before the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kottayam. The Tribunal placed reliance on the subsequent decision of this Court in [1989] 73 STC 336; (1989) 1 KLT 270 (Kanakapalam Estate v. State of Kerala) to hold that rubber trees would be nothing but timber assessable to tax under the Kerala General Sales Tax Act, 1963. The Tribunal has relied upon a passage from the said decision of this Court and the said decision being the decision of the jurisdictional High Court was, naturally, held binding by the Tribunal. However, it was brought to the notice of the Tribunal that the decision of this Court in Kanakapalam Estate's case [1989] 73 STC 336; (1989) 1KLT 270 was taken up before the apex Court and it was submitted in that connection that though the special leave petitions came to be dismissed, the apex Court passed the following order : "It will be open to the petitioner to place adequate materials to establish that rubber trees did not constitute timber in subsequent year, as alleged." The assesses acted on the above observation of the apex Court dated November 27, 1989 while dismissing the special leave petition in Kanakapalam Estates' case and produced certain documents to contend and show that rubber trees will not constitute timber liable to be assessed. 8. One of the documents produced, which was referred to in the judgment by the Tribunal, is a correspondence from the Director of Research, Rubber Institute of India, Rubber Board, Kottayam. The assessees produced photostat copies of other materials. 8. One of the documents produced, which was referred to in the judgment by the Tribunal, is a correspondence from the Director of Research, Rubber Institute of India, Rubber Board, Kottayam. The assessees produced photostat copies of other materials. The learned Senior Counsel also submitted before us that even other decisions were placed for consideration of the Tribunal. Incidentally, the said decisions were the decisions of the apex Court and they have been placed by the learned Senior Counsel for our consideration also in support of his contentions. The Tribunal found that the decision of this Court in Kanakapalam Estates case [1989] 73 STC 336; (1989) 1 KLT 270 is directly on the point and, therefore, following the dictum laid down in the judgment of this Court in Kanakapalam Estates' case [1989] 73 STC 336; (1989) 1 KLT 270, the Tribunal endorsed the views of the two authorities that the turnover of sales of rubber trees has rightly been brought to tax in the assessment by the assessing authority. 9. We have already spread over the statutory requirement and it is to this effect that "agricultural or horticultural produce" shall not include tea, coffee, rubber, cardamom or timber. Therefore, if the rubber trees that are sold being the subject-matter of the agreements are understood as timber, the beneficiary would be Revenue and at the other end, if the situation is that if it is not timber, it would be agricultural produce and, therefore, not amenable to the levy of sales tax in accordance with the provisions of the Kerala General Sales Tax Act, 1963. There is no controversy in regard to this position between the parties before us. 10. In the process of reasoning, in the first instances, we will have to find out as to what could be understood as timber. We must state that in different contexts, the apex Court had an occasion to consider what is timber in as many as its three decisions in AIR 1958 SC 532 (Shantabai v. State of Bombay), [1985] 60 STC 213 (State of Orissa v. Titaghur Paper mills Co. Ltd.) and [1988] 68 STC 324 (Mukesh Kumar Aggarwal & Co. v. State of Madhya Pradesh). 11. Ltd.) and [1988] 68 STC 324 (Mukesh Kumar Aggarwal & Co. v. State of Madhya Pradesh). 11. In the first case of Shantabai AIR 1958 SC 532 , we have the Constitution Bench judgment of five Judges, relating to the interpretation of an unregistered document giving the right to enter upon certain areas of the property in order to cut and take out bamboos, firewood and teak with certain restrictions put on the cutting and feeling of certain trees as prohibited. This was in relation to the M.P. Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950. In the leading judgment of Vivian Bose, J., the question that came up for consideration was with regard to tree and standing timber and the distinction in regard thereto in the context of the provisions of the Transfer of Property Act, 1882. It is observed with reference to the provisions of the Transfer of Property Act that "trees" are regarded as immovable property because they are attached to or rooted in the earth and at the other end, "standing timber, growing crops or grass" would not be considered as immovable property in the context. 12. It is in this connection, the apex Court was required to consider the difference between standing timber and a tree, especially with reference to the situation that in the first sense, it is to be understood as immovable property and in the other sense, it is not. The apex Court referred to the Webster's Collegiate Dictionary defining timber as follows: "Wood suitable for building houses, bridges, ships, etc., whether on the tree or cut and seasoned". It is observed, therefore, that standing timber must be a tree that is in a State fit for these purposes and, further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. In the process of reasoning, the apex Court in paragraph 32 of the judgment, has referred to Mulla's Transfer of Property Act to make it known what would be the standing timber and the following paragraph is quoted in support thereof : "Standing timber are trees fit for use for building or repairing houses. In the process of reasoning, the apex Court in paragraph 32 of the judgment, has referred to Mulla's Transfer of Property Act to make it known what would be the standing timber and the following paragraph is quoted in support thereof : "Standing timber are trees fit for use for building or repairing houses. This is an exception to the general rule that growing trees are immovable property". Even trees and shrubs and the observations in regard thereto and in addition reference to English Law in regard thereto is also made use of as a support to declare the law in the context (in paragraph 33) that before a tree can be regarded as "standing timber", it must be in such a state that if cut, it could be used as timber; and when in that state it must be cut reasonably early. The apex Court has observed that this position is probably grounded on generations of experience in forestry and commerce and this part of the law may have been grown out of that experience. 13. The decision in Shantabai, case AIR 1958 SC 532 was thereafter acted upon with acceptance, needless to state, in the subsequent decision in Titaghur Paper Mills' case [1985] 60 STC 213 (SC). In this decision, the apex Court was concerned with the notifications imposing purchase tax on standing trees and bamboos agreed to be severed. This was an occasion to consider timber and bamboo contracts. The apex Court relied upon the earlier decision of the Constitution Bench in Shantabai's case AIR 1958 SC 532 . It is declared that standing timber must be a tree that is in a state fit for these purposes and, further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. These are the observations at page 239 of the Report. 14. Even thereafter, at page 266 of the Report, the following are the observations referring to Shantabai's case AIR 1958 SC 532 : "On turning to various dictionaries, we find that the dictionary meaning largely coincides with the statutory meaning of the word 'timber'. These are the observations at page 239 of the Report. 14. Even thereafter, at page 266 of the Report, the following are the observations referring to Shantabai's case AIR 1958 SC 532 : "On turning to various dictionaries, we find that the dictionary meaning largely coincides with the statutory meaning of the word 'timber'. While discussing the question of the subject-matter of the impugned provisions we have set out the definition of the word 'timber' contained in the Webster Collegiate Dictionary occurring in the passage from the judgment of Vivian Bose, J., in Shrimati Shantabai v. State of Bombay (1959) SCR 265. The relevant meanings of the term 'timber' given in the Shorter Oxford Dictionary, Third Edition, are 'building material generally; wood used for the building of houses, ships, etc., or for the use of the carpenter, joiner or other artisan'. This definition also states that the words is 'applied to the wood of growing trees capable of being used for structural purposes; hence collectively to the trees themselves'. Amongst the meanings given in the Concise Oxford Dictionary, Sixth Edition, are 'wood prepared for building carpentry, etc.; trees suitable for this; woods, forests, piece of wood, beam. One of the meanings of the word 'timber' given in Webster's Third New International Dictionary is 'wood used for or suitable for building (as a house or boat) or for carpentry or joinery'. A 'log' according to the Shorter Oxford English Dictionary means 'a bulky mass of wood; now usually an unhewn portion of a felled tree, or a length cut-off for firewood' and according to the Concise Oxford Dictionary it means 'unhewn piece of felled tree, or similar rough mass of wood especially cut for firewood'. Thus, logs will be nothing more than wood cut up or sawn and would be timber." 15. The apex Court yet in the third decision in Mukesh Kumar Aggarwal & Co's case (1988) 68 STC 324 , dealt with the situation as to whether "ballies"and "poles" from amongst the eucalyptus wood-heaps sold by the forest department would constitute and answer the description of timber in the context of entry 32A of Part II of Second Schedule to the Madhya Pradesh General Sales Tax Act, 1958. In paragraph 4 of the said judgment, we get the following approach : "4. In paragraph 4 of the said judgment, we get the following approach : "4. In a taxing statute words which are not technical expressions or words of art, but are words of everyday use must be understood and given a meaning, not in their technical or scientific sense, but in a sense as understood in common parlance, i.e. 'that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it'. Such words must be understood in their 'popular sense'. The particular terms used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of those terms used and not in their scientific and technical sense 'for the Legislature does not suppose our merchants to be naturalists or geologists or botanists'. The expression 'timber', it seems to us, has an accepted and well-recognised 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." Further, in the process of reasoning, it would be found that not only the decision of Sir George Jessel in Honeywood v. Honeywood (1874) LR 18 Eq 306, but also the earlier decision of the Constitution Bench in Shantabai's AIR 1958 SC 532 ; (1959) SCR 265 have been referred to. Then it is observed that "timber" is understood to be "imarathi-lakdi" [Words in hindi transliterated in English.]. It is further observed that in a popular sense, "timber" has certain association of ideas as to its size, stability, utility, durability, the unit or measure of quantity and of valuation, etc., and the question is whether by the standard of these popular connotations, the "wood-stacks" or "wood-heaps" sold to, and purchased by the appellants can be held to answer the poplar notions of "timber". With reference to the question whether "eucalyptus" tree is or is not a "timber" tree, it is observed that, apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength, size and durability. In spite of this position, the apex Court has observed thereafter in the following manner : ".......... In spite of this position, the apex Court has observed thereafter in the following manner : ".......... But the question is whether the subsidiary part of the tree sold in heaps after the 'ballies' and 'poles' are separated, can be called 'imarathi-lakdi' or 'timber'". and it is observed that it would be some what of a strain on the popular meaning of the expression "timber" with the sense, size and utility implicit in the idea, to call these wood-heaps "timber", meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps "timber" whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the "goods" were not timber, but only "firewood". 16. The approach that is available from the above three decisions of the apex Court would be required to be seen in the light of the material on record. This is especially in view of the peculiar situation that the proceedings for the assessment years 1973-74 onwards up to 1988 are awaiting for the answer, in spite of the fact that the assessees acting in the light of the observations of the apex Court dated November 27, 1989 keeping the question open to establish that the rubber trees did not constitute "timber" in subsequent years. We have already stated that the Tribunal has considered the question as closed in view of the decision of this Court in Kanakapalam Estates' case [1989] 73 STC 336; (1989) 1 KLT 270. The material on record consists of documents and photostat extracts of research assertions as well as the following two standard books (i) Rubberwood Production and Utilisation by A. C. Sekhar, published by the Rubber Research Institute of India, Kottayam, and (ii) Rubberwood Processing and Utilisation by Hong Lay-Thong & Sim Heok-Choh, published by the Forest Research Institute, Malaysia, Kepong, 52109 Kuala Lumpur, Malaysia. 17. In the first instance, there is a correspondence dated May 3, 1989 from the Director of Research, Rubber Research Institute of India, Rubber Board, Kottayam to the Managing Director, Velimalai Rubber Co. Ltd., Kottayam and it is to the following effect : "........... Rubber wood cannot be used without treatments as a raw material for any type of wood working as it is highly susceptible to fungal and insect attack. Ltd., Kottayam and it is to the following effect : "........... Rubber wood cannot be used without treatments as a raw material for any type of wood working as it is highly susceptible to fungal and insect attack. However, it can be used for door frames, shutters, windows, furniture, panelling, flooring, carving etc., after appropriate preservative treatments soon after felling. Hence, immediately after felling, treatments, seasoning etc., are necessary. For the manufacture of rubber wood products various preservation techniques are available. However for long term durability purposes like the construction of houses, boats, etc., adequate and effective treatment methods are still obscure........" It would thus be seen on the basis of the above letter that for long term durability purposes like construction of houses boats, etc., adequate and effective treatment methods are still obscure. It would be necessary to emphasise that the Director of Research was answering a pinpointed enquiry from the Managing Director, Velimalai Rubber Co. Ltd., Kottayam with reference to the letter dated April 21, 1989 as to whether old rubber trees which are removed for replanting purposes can be used as timber without further treatment for construction of houses, boats, etc. 18. Then we have the publication from the Rubber Research Institute of India, Kottayam relating to rubber wood, production and utilisation. In chapter one itself relating to growth, availability and present status, in paragraph 1.4.6. at page 10, we find the following observation to show development of excessive cracking, severe borer attacks, warping and twisting also : "1.4.6. Almost all these industries are however facing different types of problems in the use of rubber wood. Some feel that logs stored in yards develop excessive cracking, some have complained of severe borer attacks, some have complained of warping and twisting of thin sections, veneers and splints. Some have noted unwanted cross grain, and loose grain. Varying types of knots have marred the appearance of surfaces in some types of sections timber in buildings. Depending on ideal storage period for logs or for finished goods, losses on account of the abovementioned defects are estimated to be around 25 per cent to 30 per cent. Some have noted unwanted cross grain, and loose grain. Varying types of knots have marred the appearance of surfaces in some types of sections timber in buildings. Depending on ideal storage period for logs or for finished goods, losses on account of the abovementioned defects are estimated to be around 25 per cent to 30 per cent. While many of these defects are attributable to the inherent nature of rubber wood itself and to the practices in the existing plantation maintenance methods, there are also some due to improper technological practices adopted in various industries..........." Then there is Rubber Board Bulletin No. 4 (at pages 35 - 38) of the paper book. We get certain tendencies of the rubber wood giving cautions in regard thereto. They are as follows : "Untreated rubber wood is very susceptible to fungal and insect attack due to high starch and soluble sugar contents and also due to the lack of phenolics which are inhibitory to fungus infection causes discoloration of wood making it less attractive and insects create bore holes which in turn make the wood less suitable especially for the manufacture of furniture. Therefore, sawing and treatment of the timber immediately after felling of the tree is the basic principle involved in the preservation of rubber wood against fungal and insect attack and decay." Additionally, it would be seen from yet another publication - Rubberwood, Processing and Utilization of the Forest Research Institute, Malaysia (pages 51-61 of the paper book). Chapter V of the said book is relied upon and, therefore, a photostat copy thereof is annexed to the paper book. On the very first aspect of durability of rubberwood, the following observations would provide the necessary caution : "Durability : There is no distinction between the sapwood and heartwood in rubberwood. Therefore it can be considered that rubberwood contains only sapwood (Thomas & Landon 1953, anonymous 1982 a), and like the sapwoods of all timbers, is therefore non-durable (Scheffer & Cowling 1966, Hong et al. 1980, Mohd. Dahlan & Tam 1987, Wong 1988). The timber appears to be even less durable than bamboo (Martawidjaja 1971) or oil palm (Elaeis guineensis) stems (Wong & Koh 1991). The high severity of the decay problem, evident in the warm and humid tropics as in Malaysia, is realised by the need for a rapid preservative treatment and drying of freshly sawn timber. The timber appears to be even less durable than bamboo (Martawidjaja 1971) or oil palm (Elaeis guineensis) stems (Wong & Koh 1991). The high severity of the decay problem, evident in the warm and humid tropics as in Malaysia, is realised by the need for a rapid preservative treatment and drying of freshly sawn timber. The high carbohydrate (sugar and starch) reserves deposited in the parenchyma (Azizol & Rahim Sudin 1989, Wong 1993), are major factors governing the high decay susceptibility of rubberwood." 19. We are not referring to the photostat copy of the issue of "Rubber Asia" for the month of July, August, 1994 because we find that the contents thereof are in the nature of a propaganda literature for sale promotion in regard thereto of rubber produce meant for furniture and partition. Thus, from the material on record, it would be seen that even after all the assessment years in question, the position with regard to the rubber trees agreed to be sold as standing trees could not be understood as timber in any sense of the situation. In fact, the material clearly shows that for long durability purposes like construction of houses, boats, etc., adequate and effective treatment methods are still obscure. It is further seen that the rubber wood is very susceptible to fungal and insect attack. We have also pointed out that even the rubber logs develop excessive cracking, severe borer attacks, warping and twisting. It is also seen that this is the position emerging from the material that came to the published in 1989 and onwards, not to speak of the situation in regard thereto during the period of the assessment years for consideration before us. 20. We find that the Tribunal did not attach due and proper importance to the observations of the apex Court dated November 27, 1989, showing that even the apex Court left in open to consider left it open to consider adequate material to establish the the rubber trees did not constitute timber. It is obvious that the assessees before us placed the material in the context of the above observations. However, the Tribunal has found itself covered by the decision of the jurisdictional High Court In Kanakapalam Estates' case [1989] 73 STC 336; (1989) 1 KLT 270. It is obvious that the assessees before us placed the material in the context of the above observations. However, the Tribunal has found itself covered by the decision of the jurisdictional High Court In Kanakapalam Estates' case [1989] 73 STC 336; (1989) 1 KLT 270. The Tribunal has not noticed that the observations of the apex Court dated November 27, 1989 relate to the special leave petition in regard to the same case. 21. We have been taken through the said decision by the learned Government Pleader for the State Revenue for this submission that the Tribunal would not be considered to be in error in any way in view of the said decision. We have gone through the said decision and we find that the matter is decided at the stage of admission taken up before this Court by the assessee. The three decisions of the apex Court referred to by us hereinbefore do not appear to have been considered in the judgment. Even then, this Court has considered the term "timber" by reference to the dictionary meanings in Law Lexicon by Ramanatha Iyer and Stroud's Judicial Dictionary in the context. It is thereafter this court has held it is unable to hold that in Kerala, rubber trees will not come within the term "timber". It is observed that a large majority of common people use arecanut trees, coconut trees, bamboos, etc., for building houses and huts for habitation. Rubber trees also can be used for the said purpose. The learned counsel contended that the three decisions of the apex Court would have to be understood as the declaration of law by the Supreme Court article 141 of the Constitution of India. That these three decisions determine the approach as declared by the apex Court would have to be understood as our misfortune of the situation in appreciating the earlier judgment. 22. Therefore, we hold that the three decisions of the apex Court referred to above determine the approach. Additionally, even the material on record, which is such subsequent to the assessment years in question, answer the position that rubberwood cannot be understood as timber, more so in the context of the agreements in regard thereto. 22. Therefore, we hold that the three decisions of the apex Court referred to above determine the approach. Additionally, even the material on record, which is such subsequent to the assessment years in question, answer the position that rubberwood cannot be understood as timber, more so in the context of the agreements in regard thereto. The agreements clearly mention that an occasion to enter into them occurred because rubber trees became old and very uneconomical and also with a view to replant rubber in the same area by way of replacement. This factual position also has to be appreciated in the light of the approach determined by the three decisions of the apex Court. 23. The learned Government counsel submitted that if the trees are taken up for sale on the ground that they have become old and very uneconomical making out a situation for replanting rubber, the trees could not be considered as trees basically. It is not possible to accept this submission, in the light of the Language of the agreements as well as in the light of the common parlance approach that even a dead tree will have to be understood as tree and not by any other nomenclature. 24. For all the above reasons, we hold that the standing rubber trees sold in pursuance of the agreements would not be timber exigible to tax and consequently would be agricultural produce coming within the meaning of explanation I(ii) to section 2(xxvii) of the Kerala General Sales Tax Act. All the tax revision cases, therefore, succeed. Petitions allowed.