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TMI Blog2017 (1) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of the term defined under section 2(28) of the Motor Vehicles Act, 1988 and therefore, not liable for entry tax. The impugned order is quashed, with a direction to the Assessing Officer, to recommence the proceedings, if necessary, against the petitioner, only after a physical examination of the subject vehicle. If, upon a physical examination of the subject vehicle, the Assessing Officer comes to the conclusion that the subject vehicle is a JCB Excavator, which moves on chains and is not adapted for use on road, as contended before me, then, the Assessing Officer will proceed, in accordance with the ratio of the judgment rendered in the RDS case, and thereafter pass appropriate orders - appeal allowed by way of remand. - W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this Act, there shall be levied and collected a tax on the entry of any motor vehicles into any local area for use or sale therein which is liable for registration, or for the assignment of a new registration mark, in the State under the Motor Vehicles Act, 1988 [Central Act No.59 of 1988]. The rate of tax shall be at such rate or rates, not exceeding twenty per cent, as may be fixed by the Government, by notification, on the purchase value of the motor vehicles: Provided that in respect of any motor vehicle which was registered in any Union Territory or any other State under the law relating to motor vehicle:-- [a] before the 10th September 1996, no tax shall be levied and collected, if the owner of such vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 1998 Act, learned counsel for the petitioner, argues that the subject vehicle is not a motor vehicle, which is liable to registration, under the provisions of the 1998 Act. Therefore, it is the contention of the learned counsel for the petitioner that no entry tax is leviable on vehicles, which cannot be registered, under the 1998 Act. 3.5. To buttress her submission, learned counsel for the petitioner, relies upon a Division Bench Judgment of this Court, rendered in RDS Projects Ltd. Vs Commercial Tax Officer, Chennai reported in (2007)8 VST 574 (Mad). 4. I had put to the learned counsel for the respondent, as to whether, the petitioner's case would be covered by the judgment of the Division Bench and that, as to whether, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of the judgment of the Supreme Court in Bose Abraham's case and thereafter, made the following observations: The learned Special Government Pleader (Taxes), on the other hand, submitted that a reading of the definition of motor vehicle would clearly show that there is no requirement as per the definition that a motor vehicle should have inflated tyres. The learned Special Government Pleader submitted that the question as to whether the excavator is moving on chain or has inflated tyres is of no consequence since such vehicle is also a motor vehicle adapted for use on public roads. He placed reliance on the decision of the apex court in Bose Abraham v. State of Kerala [2001] 121 STC 614. The short question that fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The scope of sub-section (28) of section 2 of the Motor Vehicles Act, 1988 was considered by the Supreme Court in Bolani Ores' case AIR 1975 SC 17, wherein the court observed as follows : The question would then arise, are dumpers, rockers and tractors suitable or fit for use on roads ? It is not denied, that these vehicles are on pneumatic wheels and can be moved about from place to place with mechanical power. The word 'vehicle' itself connotes that it is a contrivance which moves. A vehicle which merely moves from one place to another need not necessarily be a motor vehicle within the meaning of section 2(28) of the Act. It may move on iron flats made into a chain such as a caterpillar vehicle or a military tank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es around only in work sites and it is not suitable or adapted for use in public roads. This position is also confirmed by the physical verification carried out by the respondent, as seen from his report extracted above. The Kerala High Court in the case of Intelligence Officer, Squad No. IV, Kozhikode v. Ray Constructions Ltd. [2006] 147 STC 438 while considering a similar issue has held that the excavators in question having regard to its distinguishing features from the other excavators has to be held as not motor vehicle falling under the definition of the term defined under section 2(28) of the Motor Vehicles Act, 1988 and therefore, not liable for entry tax. It is relevant to note that the Volvo excavators purchased by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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