(Order of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The issue in the revision is as to whether the Crane sold by the assessee is taxable at 16% under Entry 8 of Part F of I Schedule to the TNGST Act or at 5% under Entry 33 of Part C of the I Schedule
2. Before adverting to the facts of the case, we are of the view that it is better to have the entries which would enable us to decide the issue in one way or other.
3. Entry 33 of Part C of I Schedule to TNGST Act reads as follows:-
S.No Description of goods Point of levy Rate of tax (%) Item No. In the pre schedule 33 Crane lorries including floating cranes, break down lorries, road sweeper lorries, spraying lorries, concrete mixer lorries, mobile workshops, mobile radiological units, ambulances, fire fighting units including fire, floats, drilling rigs mounted on motor vehicles and floating vessels, platform trucks for lift truck saloon cars and other similar varieties at machinery of which a mechanically propelled vehicle form an integral part which is subsidiary to their main functions, tyres (including phenumatic tyres radial tyres) tubes and flaps ordinarily used for the above (whether or not such tyres, tubes and flaps are also used for other vehicles) and articles (excluding batteries) adopting for use generally of parts and accessories of the above. At the point of first sale in the State.
55 A
3. Entry 8 of Part F of I Schedule to TNGST Act reads as follows:-
S.No Description of goods Point of levy Rate of tax (%) Item No. In the pre schedule 8 Lifts and hoists operated by electrically or hydraulic power, parts and accessories thereof.
4. The assessee has purchased Hydraulic Mobile Crane and sold the same treating it as a machinery and collected tax at the rate of 8% under Entry 35 Part D1. The Assessing Authority has treated that crane as an item coming within the purview of Entry 8 of Part F of I Schedule and levied tax at the rate of 16%. Aggrieved against the same, the assessee moved the appellate authority, who confirmed the same. On further appeal, the Tribunal has reversed the finding of the authorities and also the claim of the assessee and ultimately held that the Crane which the assessee sold would come only under Entry 33 of Part C of the I Schedule to the TNGST Act. The correctness of the same is now canvassed in this revision by the revenue.
5. The Assessee has purchased Hydraulic Mobile Crane from other State dealers i.e., M/s Escorts Limited. The Mobile Crane contains the chassis on which the Crane was installed. The operations of the machinery as per the manual produced by the assessee reads as follows:-
a) Hydraulically extendable telescopic book, which can be extended by operating hydraulic lever from inside operator's cabin.
b) Defrocking by crane boom is controlled hydraulically. This allows smooth fractional lifting or drop by means of single finger tip lever operation.
c) Hydraulic "Quick" hoisting and wincing operation facilities lifting of loads from below 6 meters ground level.
d) Articulated chassis design gives a 550 slow on each side enabling accurate splitting of loads".
6. In addition to that, the assessee has also established before the Tribunal that the Crane was operated by high speed diesel oil and the Air Compressor is of reciprocating, positive dog drive from engine containing the clutch-dry, single plate, heavy duty friction type 280 mm dia. As regards the electrical system, it was established that the Crane was operated only on 12V single battery negative earth adopting for use generally of parts and accessories of the above.
7. From the description given above, we are of the view that the mechanically operated Hydraulic Mobile Crane cannot by any stretch of imagination be regarded as ever an item come under Entry 8 of Part F of I Schedule which reads thus:- "Lifts and hoists operated by electrically or hydraulic power, parts and accessories"
8. The word "Lift" has been defined in the Concise Oxford dictionary as follows:-
" raise or be raised to a higher position or level a platform or compartment housed in a shaft for raising and lowering people or things. - a device for carrying people up or down a mountain an act or instance of lifting.
9. The word "Hoist" has been defined in the Concise Oxford dictionary at page 678 as follows:-
"raise by means of ropes and pulleys haul up -
1) an act of hoisting
2) an apparatus for hoisting something"
10. From the user point of view as well as from the operation point of view and the physical structure point of view, which has been explained in detail in the above paragraphs, the Hydraulic Mobile Crane cannot be encompassed within Entry 8 "Lifts and Hoists", which are only for the purpose of raising or lifting something to a higher position and the user would also know the way as stated above. Though specifically Mobile Crane has not been included, the phraseology used in Entry 33 "similar varieties of machinery of which a mechanically propelled vehicle form an integral part which is subsidiary to their main function" would definitely encompass with it Mobile Crane, if we read the provision in Ejusdem Generis Principle. In our view, the Tribunal has taken a correct view with a clear and cogent finding. We do not find any irregularity in the finding of the Tribunal having regard to enumeration of goods stated in Entry 33 of Part C of I Schedule of TNGST Act, during 1994-95.
11. Once we come to the conclusion that the Hydraulic Mobile Crane, can only be regarded as one of the items in Entry 33 of I Schedule, levy of penalty is uncalled for and unwarranted. The Tribunal has correctly deleted the penalty.
12. The Tax case revision is dismissed. No costs.
(K.R.P.,J.) (M.M.S.,J.) 09.12.2009 Index : Yes/ Internet : Yes/ rg To Sales Tax Appellate Tribunal (Additional Bench), Coimbatore K.RAVIRAJA PANDIAN, J.
And M.M.SUNDRESH, J.
rg T.C.(R) No.2113 of 2006