9911796707
TMI Blog2018 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... her direction to the Special Assistant Commercial Tax Officer, Hosur/first respondent, to release Tata Hitachi Model EX 200 LC Hydraulic Excavator with HD Bucket and kit loaded on Truck No.HR 38 F 1131 to the petitioner. 2. Petitioner has contended that Tata Hitachi Model EX 200 LC Hydraulic Excavator is not a motor vehicle as defined in Clause 28 of Section 2 of the Motor vehicles Act, 1988 and therefore, cannot be brought under tax net. Petitioner has further contended that as per Section 5 of the Entry Tax Act, Officers, below the rank of the Deputy Commercial Tax Officer, are not empowered to act as assessing Officers, for the purpose of Entry Tax Act. However, in the case on hand, the Special Assistant Commercial Tax Officer & Check P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no registration under the Motor Vehicles Act, the goods are not attracted entry tax. Further contention that the levy has been held to be compensatory in the judgment of this Court while upholding the constitutional validity of the 1997 Act in R.Gandhi V. Union of India, which followed the judgment of the Supreme Court in State of Bihar Vs. Bihar Chamber of Commerce [1996] 103 STC 1 as the subject excavators are not adapted to road, i.e., the road has not been used by the excavator, the levy of entry tax is not attracted to the excavator has also been raised. 14. The learned Government Pleader relied on the decision of the Supreme Court in the case of Bose Abraham V. State of Kerala reported in [2001] 121 STC 614 to contend otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not authorised under any law and cannot be the intention of the law makers. 7. In RDS Projects Ltd., Vs. Commercial Tax Officer, Chennai, reported in 2007 (8) VST - 574 (Madras), a Hon'ble Division Bench of this Court, directed physical inspection of the machines and file a report. After considering the report, the Hon'ble Division Bench of this Court framed a question, as to whether the excavator not running of tyres but on iron chain plates such as, the caterpillars and military tanks and others, would fall within the definition of Section 2 (i) of the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990 read with Section 2 (28) of the Motor Vehicles Act, 1988, and whether, liable to pay tax under Section 3 of the Tamil Nadu Tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atic 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. Both move from one place to another but are not suitable for use on roads. It is not that they cannot move on the roads but that they are not adapted, made fit or suitable for use on roads. They would, if used, dig and damage the roads. (emphasis supplied) 12. Reference may also be made to the decision of the apex court in Central Coal Fields Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner which is the subject-matter of levy of entry tax are exactly similar to the excavators which were the subject-matter in the above referred reported decision of the Kerala High Court. 14. Under the circumstances, the impugned show cause notice cannot be sustained and it is hereby set aside. The writ appeal is disposed of accordingly. 8. Decision made in M/s.P.R.P ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
