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TMI Blog2015 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ". The word "machine" itself has been taken from the Latin word "Machina" which in turn has been derived from the Greek word "Mekhane" a derivation from "means, expedient, remedy". One can say that earlier the concept of "machines" was confined to the mechanized equipments but with the innovative ideas, discoveries and inventions, the concept of machines has undergone a huge but consistent change. Today, besides the traditional kind of machines, we have gone to the extent of having molecular machine, which is a concept designed in bio-technology. The present day Scientist and Researchers term these machines and equipments as part of "nano-technology". - the term "machinery" is a genus and "motor vehicle" is a species. The motor vehicles in wider sense may specify the term "machine" and "machinery" but when a special entry is provided in the same statute differently than the items which would specify the definition of "motor vehicle" will have governed by that entry and not by "machine" and "machinery". In that context now it would be necessary to examine, whether "Hydraulic Excavator" can be said to be within the ambit of term "motor vehicle" and if so it will stand excluded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a machinery under Entry 2 of the Schedule to Act, 2007 but is a motor vehicle under Entry 13. The claim of dealer was rejected by Assistant Commissioner, Trade Tax Division-3, Jhansi vide order dated 31.07.2007 and holding that disputed item is a machinary, hence is taxable at 2%, imposed entry tax of ₹ 31,938/-, whereagainst the respondent-dealer preferred Appeal No. 453 of 2007, which was allowed by Joint Commissioner of Appeal vide order dated 26.11.2007 holding that disputed item is governed by entry motor vehicles of all kinds . Thereagainst the Revenue preferred Second Appeal No. 60 of 2008, which has been dismissed by Tribunal vide impugned order dated 23.05.2009. 4. Learned Standing Counsel, appearing for applicant-revisionist contended that definition of motor vehicle is not given in Act, 2007 and, therefore, for that purpose it would be prudent to go to the definition of vehicle under Motor Vehicles Act, 1988 (hereinafter referred to as the Act, 1988 ) and under section 2(k) of U.P. Trade Tax Act, 1948 and in that view of the matter, Hydraulic Excavator cannot be said to be a motor vehicle since it is not used for carrying load on the road but is us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that context of the matter, Court held, that Excavators and Road Rollers are governed by the wider definition of motor vehicle under Act, 1988 and, therefore, would be motor vehicle for the purpose of Kerala Act. 11. Strictly speaking the issue in question cannot be decided mechanically by relying on the aforesaid decision unless I find some more facts relevant to decide the issue in question as to whether the Excavator or to be more precise Hydraulic Excavator can be said to be a machinery or a motor vehicle for the purpose of Act, 2007. 12. The term machinery is a wider term. It derives its meaning no doubt from the term machine but its scope is wider than the term machine . The word machine itself has been taken from the Latin word Machina which in turn has been derived from the Greek word Mekhane a derivation from means, expedient, remedy . 13. Earlier, a machine, used to be said to be a tool containing one or more parts that uses energy to perform an intended action . Usually in its nascent stage the machines were powered by mechanical, chemical, thermal, or electrical means, and are often motorized. But with the advent of electronic dig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to information and signal processing. The ability of electronic devices to act as switches, makes digital information processing possible. Interconnection technologies such as circuit boards, electronic packaging technology, and other varied forms of communication infrastructure, complete circuit functionality, and transform the mixed components into a working system. Similarly, computing machines are another advanced form of machines of modern day. The Computers store and manipulate flow of electrons, with patterns in this storage, and flow being interpreted as information manipulation. 17. In other words, one can say that earlier the concept of machines was confined to the mechanized equipments but with the innovative ideas, discoveries and inventions, the concept of machines has undergone a huge but consistent change. Today, besides the traditional kind of machines, we have gone to the extent of having molecular machine, which is a concept designed in bio-technology. The present day Scientist and Researchers term these machines and equipments as part of nano-technology . 18. The term machinery , as has already said, includes something more than machines and in g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery. 23. The Privy Council in Corporation of Calcutta Vs. Chairman of the Cossipore and Chitpore Municipality (supra) also held that machinery must be something more than a solid structure built upon the ground whose parts either do not move at all or, if they do move, do not move the one with or upon the other in interdependent action with the object of producing a specific and definite result. Their Lordships said that there was great danger in attempting to give a definition of the word machinery which would be applicable in all cases and it may be impossible to succeed in such an attempt. However, they observed that the word machinery when used in the ordinary language, prima facie, means some mechanical contrivances which by themselves or in combination with one or more other mechanical contrivances by the combined movement and interdependent operation of their respective parts generate power, or evoke, modify, apply or direct natural forces with the object in each case of effecting so definite and specific a result. 24. In the context of Income Tax Act, 1922 a question had arisen whether a new diesel engine or petrol engine used in automobiles can be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpful to decide whether the tractor-trailer is machinery or not. Take the case of a tailoring machine. When force is applied on the treadle, the bigger wheel which is connected to the treadle by a rod moves, which having been connected to a smaller wheel of the machinery called the balance wheel, by a belt, makes the smaller wheel to move fast and it makes all other parts to move in the designed manner. Thus, the tailoring machine answers the description of a machine. The work of stitching is done by the machine with great speed and uniformity. Doing similar work and with that speed is impossible by human physical power. So also a typewriter, which works in a systematic manner on pressing the keys of the keyboard by the fingers in the required manner which work cannot be performed by human physical power. But, take the case of scissors, though on the application of force at one end, the two blades of it move and can cut certain articles, it has no attributes of a machines. Force is not multiplied for doing any work. There is no organisation of the several parts into one unit, all functioning simultaneously on the supply of power at a given point. No intelligent person considers it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a machinery which distinguishes it from other things, the mode or he manner in which power is fed into it or force is applied need not and should not make any difference. It is conceded, for example, that a machinery would be a machinery whether it is fed by electrical power or other form of power applied by steam or generated by burning combustible oils. If the ode or the manner in which the power is applied makes no difference in these specific cases, it should make no difference either if the source of power is either human or animal. 29. Looking to the above explanation and interpretation with reference to machinery I find that, how an individual or a party understand the thing or a commodity by itself would not be decisive in holding a particular commodity to belong to a particular category. It depends upon various relevant aspects. The general consensus in the context of machinery is that it is a device used for a particular purpose or result which takes energy in any form but results in combined functioning to achieve the work which otherwise may not be possible by human physical efforts or power, i.e., without help of such devices. The supply of power could be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derogate other from special things. Initially this principle was applied mostly in the cases where conflict between provision of two separate instruments/statute was noticed but later on it has been applied to a situation covered by two provisions of the same Statute for the reason that the principle is of a common sense doctrine that the general shall not derogate from the particular. 36. The Apex Court in Chandra Prakash Tiwari And Ors. vs Shakuntala Shukla and others, AIR 2002 SC 2322, in para 36 held as under: 36. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. Admittedly, the guidelines as contained in the Government Order dated 5.11.1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1996 will not apply to such disputes. 60. We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation Act, 1996. However, as regards, the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003). In other words, Section 86(1)(f) is only restricted to the authority which is to adjudicate or arbitrate between licensees and generating companies. Procedural and other matters relating to such proceedings will of course be governed by Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003. 39. In Tata Motors Pvt. Ltd. Vs. Pharmaceutical Products of India Ltd. Anr. , JT (2008) (9) SC 227 in para 19 of the judgment the Court said: The provisions of a special Act will override the provisions of a general Act. A later of it will override an earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluding specifically only a Tractor otherwise even a Tractor would have been included in the aforesaid term. The mere fact that excavator in question works with hydraulic system would not change its very nature of being a excavator. The Tribunal, therefore, has rightly held that in wider sense a, Excavator or Hydraulic Excavator may be said to be a machinery but when a specific entry is there, i.e., motor vehicles of all kinds , an excavator satisfying aforesaid entry will be governed by the same and cannot be taxed by treating it as a machinery only. The mere fact that the general goods are not being transported by Excavator would make no difference for the reason that legislature has used the term motor vehicles in a very wide manner by providing that all kinds of motor vehicles would be governed by Entry 13 of the Schedule attached to Act, 2007. 49. In the result, the question of law formulated above is answered against Revenue and in favour of Dealer. I do not find any error with the judgment of Tribunal and the same is hereby confirmed. The revision is accordingly dismissed with costs, which I quantify to ₹ 5,000/-. - - TaxTMI - TMITax - CST, VAT & Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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