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TMI Blog2005 (2) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... works for the Indian Institute of Management, Kozhikode. The excavator in question was brought from Bombay belonging to the sister concern. After using the excavator at Karipur by the petitioner who was in the process of transport from Karipur to Kunnamangalam, for return of the said excavator to his sister concern the said excavator was carried in a trailer lorry bearing Reg. No. KA. 08/ 777. While the said trailer reached near Kozhikode, the Intelligence Inspector attached to the first respondent intercepted the lorry and issued a notice directing the remittance of entry tax on the value of the excavator, since according to the officer, entry tax is leviable on the goods, viz., the excavator in question. Exhibit P1 is a copy of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Baiju Joseph v. State of Kerala (1998) 6 KTR 1. Petitioner thereafter filed a writ petition before this Court as O.P. No. 5592 of 2000 challenging the proceedings initiated under the Entry Tax Act. As per an interim direction, a bank guarantee was furnished by the petitioner for Rs. 6,66,000 and got the excavator released on furnishing such guarantee. This Court disposed of the original petition by exhibit P6 judgment. It took note of the contention of the petitioner that the excavator is moving on chain as in the case of a tank and is not fitted with wheels which is the essential distinguishing feature of this excavator from other excavators and therefore the decision reported in Baiju Joseph v. State of Kerala (1998) 6 KTR 1 as confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 25, 2002 as well. 2.. It is contended by the learned counsel appearing for the petitioner that the decision rendered by this Court in Baiju Joseph's case (1998) 6 KTR 1 as confirmed by the apex Court in Bose Abraham's case [2001] 121 STC 614; (2001) 9 KTR 336 is distinguishable from the present case. According to the petitioner, the said decision has no application in the factual situation arising in this case having due regard in the nature of the vehicle in question. 3.. The question that arises for consideration is as to whether the excavator said to have brought by the petitioner is a motor vehicle and whether the vehicle is liable to be assessed under the Kerala Tax on Entry of Goods into Local Areas Act and as to whether the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for use only in a factory or in any other enclosed premises or a vehicle having less than 4 wheels fitted with engine capacity of not exceeding 25 cubic centimetres." 5.. The scope of a meaning of the term as defined under section 2(28) of the Motor Vehicles Act to the extent, they are relevant for the purpose of this case, has since come up for consideration before the apex Court in Bolani Ores Ltd. v. State of Orissa [1975] 2 SCR 138; AIR 1975 SC 17. After a thorough survey of the case law on the subject the apex Court held as follows: "The meaning of the word 'adapted' in section 2(18) of the Act is itself indicated in entry 57 of List II of the Seventh Schedule to the Constitution, which confers a power on the State to tax vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded for use in the enclosed premises. Merely because a motor vehicle is put to a specific use, such as being confined to an enclosed premises will not render the same to be a different kind of vehicle. Hence in our view, the High Court has correctly decided the matter and the impugned order does not call for any interference by us." 7.. In that case, apart from the admission made by the parties that the excavators in question are suitable for use on roads, the fact remains that the type of excavator in respect of which it was held as a motor vehicle was an excavator loader mounted on four wheels is a mobile digging and loading machines. It was suitable to move from one place to another and the vehicle was fitted with four rubber tyres. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case (1998) 6 KTR 1. Therefore the fact remains that the excavator in the present case cannot be taken through road on its chain without causing serious damage to the road. It is beyond reason to say that the excavator in the present case is adapted for use on the roads. Exhibit P7 communication issued by the Commissioner of Commercial Taxes though addressed to a third party, however would show that the earth mover machinery (excavator) run on chains were not considered as falling under the definition of the Motor Vehicles Entry Tax Act. Therefore while taking the decision, one cannot loss sight of the distinguishing features as are present in the excavator with which we are concerned in deciding the exigibility to be taxed under the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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