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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 ..... sed in this revision is, "whether "Hydraulic Excavator" is a machine under Entry 2 or motor vehicle under Entry 13 of the Schedule attached to Act, 2007." 3. The dealer, M/s Anand Tyres, Jhokhan Bagh, Jhansi imported "Hydraulic Excavator" and claimed that the said item is 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not to be used mechanically for the purpose of another statute unless it is applicable by necessary implication or otherwise some relevance is shown. In the judgment in Bose Abraham Etc. Vs. State of Kerala (supra) the term "motor vehicle" was defined in the Kerala Act by stating that the motor vehicle would mean the same definition as is provided under Act, 1988. It is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technology dealing with electrical circuits that involve active electrical components such as vacuum tubes, transistors, diodes and integrated circuits, and associated passive interconnection technologies. The nonlinear behaviour of active components and their ability to control electron flows, makes amplification of weak signals possible and is usually applied 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 chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific a result. The tank and its supporting structure do not satisfy this definition. (iii) Determination as to what is or what is not "machinery" must, to a large extent, depend on the special facts of each case. (iv) Illustrations are better guides to ascertain the true meaning of the word "machinery", when used ordinarily and not as a specific definition. (v) Whether an intelligent person would, in the ordinary use of language, describe a particular thing as 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with which the machinery does the same work. Supply of power to the machine could be either by the natural forces or by human or animal energy, or electric energy or any other type of energy." 26. Referring to some other judgments of High Courts, the Court held the "Tractor Trailer" not a "machinery", observing as under: "7. Bearing in mind, the criteria laid down by the Privy Council in order to find out what is machinery and its application in the cases referred to above, we shall now proceed to consider, as to whether the tractor-trailer is a machinery. A few illustrations would be helpful 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court's decision in Commissioner of Income Tax, Madras Vs. Mir Mohammad Ali (supra) in Rashmi Enterprises Vs. State of Gujarat, 1993(91) STC 295. 28. In D.B. Bhandari Vs. State of Mysore, 1967(20) STC 25 the Karnataka High Court, while considering, whether "handloom" is "machinery" or not, said: "In simpler language 'machinery' is a contrivance whereby several things are put together to work in such a way that force may be applied at a most convenient point in a most convenient way to get a particular work or an item of work done or to produce a specific article or manufactured goods. If this is the essential feature 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 diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field would apply to the cases covered therein and not the wider provision. 34. In Halsbury's Law of England, 4th Edn., Vol. 44 (1), (London 1995 para 1486) this principle is explained as "Constitution of general and particular enactments ... Whenever there is a general enactment in an Act, which, if taken in its most comprehensive sense, would override a particular enactment in the same Act, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the Act to which it may properly apply." 35. In Murdoch's Dictionary of Irish Law (4th ed.), this principle has been defined as a rule which requires that general things do not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies, and only Section 86(1)(f) shall apply in such a situation. "33. Section 174 provides that the Electricity Act, 2003 will prevail over anything inconsistent in any other law. In our opinion the inconsistency may be express or implied. Since Section 86(1)(f) is a special provision for adjudicating disputes between licensees and generating companies, in our opinion by implication Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes i.e. disputes between licensees and generating companies. This is because of the principle that the special law overrides the general law. For adjudication of disputes between the licensees and generating companies there is a special law namely 86(1)(f) of the Electricity Act, 2003. Hence the general law in Section 11 of the Arbitration and Conciliation Act, 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 Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conveyance". 45. "Excavator" is also defined in "Oxford Advanced Lerner's Dictionary" as a large machine that is used for digging and moving earth. 46. In "Longman Dictionary of Contemporary English" the term "excavator" has been defined a large machine that digs and moved earth and soil. 47. The Tribunal has also recorded a finding that "Hydraulic Excavator" in question is used for carrying stone boulders from one place to another, besides digging from earth. In view thereof, it cannot be doubted that excavator is a "machine" but it is used for carrying goods like stone boulders etc. from one place to another and is also used for excavation, i.e., digging from the earth and, therefore, despite being a machine, in wider sense, it also satisfy the term "motor vehicle". 48. Moreso, I am satisfied to hold that it is governed by Entry 13 of the Schedule for the reason that the legislature has provided that motor vehicle of all kinds are included therein 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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