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"(3) goods are said to be in a 'deliverable state' when they are in such state that the buyer would under the con tract be bound to take delivery of them;"

"(14) 'specific goods' means goods identified and agreed upon at the time a contract of sale is made."

Under the Orissa Act also "sale" is defined as meaning "transfer of property in goods" and the word "purchase" is to be construed accordingly. The language of the impugned provisions, especially the governing words thereof, makes it clear that what is made eligible to tax is not an executory contract of sale but an executed contract of sale or in other words, not an executory con tract of purchase but a completed contract of purchase. Bearing in mind the statutory provisions referred to above, it is further clear that such purchase would be complete when the standing trees or bamboos are specific goods, that is, when they arc identified and agreed upon at the time the contract of sale is made, and the con tract is unconditional and further such standing trees or bamboos arc in a deliverable state, that is, nothing remains to be done except for the buyer to enter upon the land of the seller and to fell and remove the trees Of bamboos, as the case may be, without any let or hindrance. If these factors exist, then unless a different intention appears either from the terms of the contract or can be infer red from the conduct of the parties and other circumstances of the case, the property in such standing trees and bamboos would pass from seller to the buyer when the contract is made and it is immaterial whether the time of payment of the price or the time of taking delivery of standing trees agreed to be severed or bamboos agreed to be severed or both is postponed. If, however, there is an unconditional contract for the sale of standing trees or bamboos which are unascertained, then unless a different intention appears, the property in them would be transferred to the buyer when the standing trees and bamboos are ascertained and it would be equally immaterial whether the time of payment of the price or the time of taking delivery of standing trees agreed to be severed or bamboos agreed to be severed or both is postponed. In either event, the sale and purchase would be completed before severance as under

Yet another aspect of this question now arises for our consideration. During the period from June 1, 1977, to December 31, 3 1977, by reason of Notification No. S.R.O. 374/77 dated May 23, 1977, the rate of sales tax on timber was fixed at ten per cent by the State Government. Since it was the contention of the State Government that logs are commercially a different commodity, the tax could not have been assessed on the sales of logs by the Respondent Firm during this period at the rate of ten per cent but would have been assessed at the general rate of six per cent specified in section 5(1) of the Orissa Act. If such was the case, on the findings given by us above, the Respondent Firm would be liable to pay sales tax not at the rate of six per cent but at the rate of ten per cent and it might be argued that the Respondent Firm has been under-assessed or part of its turnover of sales of logs has escaped assessment. The assessment order made on the Respondent Firm referred to earlier includes both the amount of purchase tax and sales tax but this is not a composite assessment order but a severable one because the turn over of sales as also the turnover of purchases have been shown separately and the amount of sales tax and purchase tax have equally been shown separately. Thus, though as a result of our holding that the amounts paid by the Respondent Firm under the Timber Contracts are not eligible to purchase tax, the assessment order would require to be modified and corrected, such modification and correction would not affect the rest of the assessment order. The question then is "Whether the sales tax authorities can reopen the assessment of the Respondent Firm so far as the turnover of sales of logs is concerned?" Under sub-section (8) of section 12 of the Orissa Act, the Commissioner of Sales Tax or those sales tax authorities to whom such power is delegated have the power to reopen an assessment but under section 12(8) the exercise of this power is subject to a period of limitation, namely, thirty six months from the expiry of the year to which that period for which the assessment is to be reopened relates. Since three years have long since expired from the year to which the period in question relates, it would not now be open to the sales tax authorities assuming it was a case for re- opening the assessment, to reopen the Respondent Firm's assessment and tax the turnover of sales of dressed or sized logs at the rate of ten per cent instead of six per cent. This question, of course, would not arise for any period on or after January 1, 1978, on which date the substituted sub- section (1) of section 5 came into force, as under the notification issued under the substituted sub-section (1), no separate rate of tax is specified either for timber or logs or any of the other goods which we have been considering above and all of them would fall for the purpose of payment of sales tax under the residuary Entry No. 101 of the Notification No. 67184-C.T.A. 135/77/1- ; dated December 29, 1977, and would be liable to sales tax at the rate of seven percent and there would thus be no under-assessment or escapement of assessment. Bamboo Contract We will now ascertain the nature of the Bamboo Contract. Unlike the Timber Contracts, the Bamboo Contract is not in a prescribed statutory form but it appears from the judgment of the High Court that all the Bamboo Contracts before it contained identical terms and conditions except with respect to the contract area, the period of the contract and the amount of royalty. The parties to the Bamboo Contract were the Governor Or the State of Orissa referred to in the said Contract as "the Grantor" and the Respondent Company. The Bamboo Contract is headed "Agreement of Bamboo Areas in Bonai Forest Division to the Titaghur Paper Mills Company Limited." The second and the third recitals of the Bamboo Contract are as follows:

Clause T of the Bamboo Contract is headed "Arc a over which the grant operates". Sub-clause (a) of clause I sets out the dates of commencement of the Bamboo Contract in respect of different contract areas. Under Sub-clause (b) of clause l, the forest produce "sold and purchased" is stated to be as specified in Schedule I and to be situated in the areas indicated in Schedule V. Under the said subclause, the grantor understood to render at all times to the Respondent Company all possible facilities to enable it to extract II and obtain its requirements of bamboos upto the limit imposed by the Bamboo Contract. Under clause II, the quantity of forest A produce "sold and purchased" is stated to be "all the said forest produce which now exist or may come into existence in the contract area which the Company may fell, cut, obtain and remove from the said area in accordance with the time- table given in Schedule V during the period... " and then the periods in respect of different areas, already mentioned while reciting the facts of Civil Appeal No. 219 of 1982, have been set out. Clause III provides that the Bamboo Contract can be terminated in accordance with the provisions in that behalf contained in the Forest Contract Rules subject to the right of the Respondent Company to appeal to the State Government in which case the Respondent Company could with the previous permission of the State Government, on such conditions as the Government might think fit to impose, be entitled "to carry on its business in terms of the agreement" until the final decision by the Government. Under clause IV, the Respondent Company is given an option to renew the Bamboo Contract for a further term of twelve years. Under clause V, the Respondent Company was to perform all acts and duties and to refrain from doing any act forbidden by the Orissa Forest Act, 1972, and to give a sum of Rs. 58,190 as security for the due performance and observance by it of the terms of the Bamboo Contract, which sum was to be returned to it on the expiry of six months after the termination or expiry of the Bamboo Contract. The Grantor was to be entitled to forfeit the said deposit and to appropriate the whole or part thereof in the event of the Respondent Company committing a breach of the terms of the Bamboo Contract such as would entitle the Grantor to terminate the Bamboo Contract. Clause VI provided that "this licence shall be subject to the Orissa Forest Contract Rules as modified from time to time" subject to the amendments thereto set out in the said clause which are not material for our purpose. Clause VIII stated that "the forest produce sold and purchased under this Agreement consists of all Salia and Daba bamboos subject to the cutting rules in the annual coupe of the felling series" Clauses IX to XIII deal with the payment of royalty. What is pertinent to note about these clauses is that under clause XIII, the Respondent Company was to pay an annual minimum royalty in the sums mentioned therein and was not to be entitled to the refund of the whole or any part of such minimum royalty should it fail to cut the minimum quantity of bamboos in any year except on the ground that the yield of the area fell below the quantity required to make up the minimum royalty payable for the year owing to gregarious or sporadic flowering of bamboos in the contract areas or from any cause whatsoever not being due to the negligence on the part of the Respondent Company or failure on its part to extract the minimum number of bamboos. The amount of royalty was to be calculated on all bamboos which the Respondent Company would cut from the contract area, whether such bamboos were removed or not, to be ascertained as provided in clauses XI and XII. Under clause XI, for ascertaining the quantity of the bamboos so cut, the Respondent Company was to remove the bamboos through such river ghats, railway, motor and other transport depots as may be agreed upon between the parties from time to time and under clause XII, the royalty was to be paid in advance in such manner that it would always be in excess of the royalty actually due. Under clause XIV, for the purpose of checking the felling and keeping an account of all bamboos to be cut by the Respondent Company, the Forest Department had the right to employ such staff as it might deem necessary and was to have free access to the contract area and to the books and other records of the Respondent Company. Further, the Respondent Company was to submit to the Divisional Forest Officer a yearly account of bamboos cut and removed from the contract area and under clause XV the company was to issue to the carter of each cart or the driver of each truck on its leaving the forest a machine numbered pass of a pattern to be approved by the Chief Conservator of Forests, Orissa. Such pass was to state the number of bamboos which each cart or truck would carry. Clause XVI prescribed the routes by which the bamboos were to be removed as also the depots at which they were to be presented for examination, Under clause XVII, at every naka the checking staff was to check each cart or truck with the pass referred to in clause XV before such cart or truck left the depot. Clause XVIII gave to the Respondent Company, subject to such restrictions as might be imposed from time to time by the Divisional Forest Officer, Bonai Division, the right during the continuance of the Bamboo Contract to use any lands, roads or streams outside the licensed areas which belonged to or were under the control of the Grantor for the purposes of having free ingrees to or egrees from the contract areas and also to such lands, roads or streams within the contract areas. Under clause X[X, the Respondent Company was bound to meet the local demands of bamboos in which event the royalty on such bamboos was not to be paid by the Respondent Company but was to be paid by the local people. Under clause XX, subject to obtaining prior written consent of the Grantor, the Respondent Company was to be at liberty to make dams across streams, cut canals, make water courses, irrigation works, roads, bridges, buildings, tramways and any other work useful or necessary "for the purpose of the said business" in or upon the licensed areas and also with the like consent to widen or deepen existing streams, channels or waterways "for the purpose of the said business"

It was submitted on behalf of the Appellant that the Bamboo Contract was a composite contract of sale, in that it was an agreement to sell existing goods" namely, bamboos standing in the contract areas at the date of the Bamboo Contract, coupled with an agreement to sell future goods, namely, bamboos to come into existence in the future. According to the Appellant the property in the existing bamboos would pass after they were ripe for cutting and under Rule 12 of the Forest Contract Rules the Divisional Forest Officer had delineated the boundaries and limits of the annual coupe from which bamboos were to be cut for the Respondent Company to take delivery of them in as much as the bamboos then became ascertained goods. In the alternative it was submitted that the property passed when the Respondent Company started the work of cutting bamboos. According to the Appellant, in either event property passed before the bamboos were severed. So far as the bamboos which were not in existence at the date of the Bamboo Contract but were to come into existence thereafter were concerned, it was submitted that as they were future goods once they came into existence and became ripe for cutting, the property in them passed to the Respondent Company in the same way as in the case of bamboos in existence at the date of the Bamboo Contract.