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TMI Blog1987 (2) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified as conveyances under Item No. 75 of the First Schedule to the Customs Tariff Act. 3. The Dumpers in all the cases would appear to have been invariably declared as mining machinery so as to be entitled to the concessional assessment under item 72 (18), read with Notification No. 117-CUS dated 20.8.1955 but assessed as conveyances. 4. It is not as if the question is res integra. (a) A Division Bench of the Bombay High Court in seven appeals [in W.A. 74/16 - V.M. Salgaocar v. Union of India] arising from a common judgment of dismissal by Deshmukh J. of seven Miscellaneous Petitions by various nine owners, had held that - Dumpers, which are basically conveyances though specifically built for carrying heavy iron ore in a rough terrain cannot be considered to be any part of the mining machinery for being classified under Item 72(18). In our view, the fact that the said Dumpers are specifically built and equipped with mechanical process of loading and unloading or that under the licence the Petitioners are required to use them only in their respective mining area would not make any difference to the nature of the dumpers which would, nonetheless basically rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e generally called off-the-highway dumpers and are used in mining and project areas and are never used on the roads. It may be that they are known as off-the-highway dumpers in common parlance. But they do not cease to be dumpers. The epithet off-the-highway used in relation to them will not take the vehicle out of the category of motor vehicle . 13. Counsel then said that the dominant or primary purpose off-the-highway dumper is that they are used for hauling large quantities of rocks or mineral ores over short distances and are totally unsuitable and unfit for use on roads. If the dumpers in loaded conditions are allowed to operate on roads they would dig or damage the roads, he said. He called my attention to the Indian Tariff Act where the custom authorities have classified dumpers as machinery and equipment . Similar, he said, is the classification made by Brussels Tariff Nomenclature (BTN) where dumpers are categorised as loading and unloading machinery. To this argument the short answer is that it is the definition of motor vehicle as given in Item 34 which will govern us and not what has been said in other enactments or literature. The object of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measuring device . These devices for loading may not be conveyances as well. Nor was the question as to whether they were adapted for use on roads would appear to have arisen. The decision of the Hon ble Supreme Court in AIR 1975 S.C. 17 was not referred to. 6. Despite the weight of the aforesaid authorities, barring, of course, the decision of the Hon ble High Court of Orissa for the reason stated supra, the learned Counsel argued at considerable length to the effect that - (a) the judgment of the Hon ble High Court of Bombay is not binding on us because there was no sufficient evidence of what the trade understood by the expression mining machinery in Item No. 72 (18) of the First Schedule to the Customs Tariff Act; should read Indian Tariff Act, 1934. [Reference to Paragraphs 15 and 16 at p 11 of the judgment of the Division Bench in W.A. 74/76]; (b) on the contrary, in these appeals, sufficient evidence like e.g. the affidavit of Shri Bharne dated 31.3.1980 (P.45 of the Paper Book), the brochure of Bharat Earth Movers referring to the Dumpers as machinery and not conveyance [page 59 of the Paper Book], certificate of Hindusthan Motors dated 27-12-1983 saying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself or external aids like e.g. dictionaries or statutes in paria materia. In construing a taxing statute, one has to look merely at what is clearly said. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in. Nothing is to be implied. One can only look fairly at the language used [per Rowlatt J. in (1921) 1 K.B. 71 Cape Brandy Syndicate v. IRC]. In the words of Shah J., as he then was, in AIR 1961 S.C. 1047 (Salestax Commissioner v. Modi Sugar Mills). In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words in the statute and interpret them. It must interpret the statute in the light of what is clearly expressed; it cannot import provisions in the statute so as to supply any assumed deficiency". Every taxing statute has a fiscal philosophy a feel of which is necessary together with the intent and effect of its different clauses [AIR 1976 S.C. 1935 - Controller o-f Estate Duty v. Kantilal Trikamlal]. A person who claims an exemption is to-establish it [AIR 1959 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle, however, being a mechanically propelled vehicle designed for use on roads is, necessarily, a conveyance. 11. Of particular significance is the enumeration of coal tubs or tipping wagons on light railway track amongst other transport material. Indisputably, they are used in mining for coal to convey or transport the coal mined. Yet they are not mining machinery in Item No. 72 (18) of the Customs Tariff should read Indian Tariff Act, 1934. Internal evidence of the legislative intent to distinguish transport materials from mining machinery is writ large in this item. When the policy of the Legislature is thus evident, is any evidence to the contrary in the guise of commercial understanding admissible? Taking a clue from it, are not any other goods meant for transport or conveyance be construed as transport materials as distinguished from mining machinery although intimately connected with mining activity? 12. The learned Counsel, however, invites our attention to passenger lifts in Item No. 72(4) under the heading Machinery and Apparatus : Electrical Material . They are also conveyances but nevertheless enumerated under Machinery rather than Transport materials . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustry along with the affidavit of a mine owner himself have been produced. Besides, some letters written by high ranking officers like Deputy Secretaries and Secretaries to the Government of India and the Chief Controller of Imports and Exports have now made available . It is not, therefore, as if no evidence was produced earlier. (b) One of the affidavits was by Shri M.S. Talavlikar, a mine owner. Another by Shri M.V. Bharne. A third by Shri Balgi. Similarly, letters dated 11.11.1969 from the Controller of Imports and Exports. (c) Is the evidence now produced new or fresh evidence? If so, in what way? The same and yet not the same? The identical people, S/Shri Bharne and Balgi swear new affidavits on 27.3.1980 and that is supposed to be fresh evidence? (d) In the appeal against Justice Deshmukh s order aforesaid, the affidavits were held to be sworn by the technical experts and on the basis of technical data and not by people in the trade. Even on technical basis it is clear from the said affidavits of experts that the said dumpers were basically conveyances. As regards the correspondence with the Government officers, their Lordships say that the goods according to them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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