This writ petition has been filed praying for a writ of Certiorari to call for the notice, dated 23.9.2009, pertaining to the demand of the entry tax for the purchase of the Tata Hitachi Hydraulic Excavator issued by the respondent and to quash the same.
2. The petitioner had stated that she is doing business, in the name and style of 'S.M.Earthmovers', involving contract labour work. Since the contract work undertaken by the petitioner would basically involve earth works, she had purchased a Tata Hitachi Model EX 110 Hydraulic Backhoe, with GP bucket and kit, which are broadly termed as 'Excavators'. The petitioner had registered herself and obtained Form B - Certificate of registration before the Commercial Tax Officer (FAC) Sivagangai, vide C.S.T.R.C.No.499606, dated 20.2.2006. The Tata Hitachi Model EX 110 Hydraulic Backhoe, with GP Bucket and Kit, is a machinery and not a vehicle. It comes under the category of Excavator. No wheels or tyres are fitted in the excavator. Instead, it has chains mounted as belt, on both sides, to enable its movement. Therefore, it does not come under the definition of Motor Vehicles as defined in clause 28 of
Section 2 of the Motor Vehicles Act, 1988.
3. The petitioner had purchased the Tata Hitachi Hydraulic Excavator from TVL Telco Construction Equipment Company Limited, Dharwad, for a sum of Rs.31,65,000/-. Since the purchase of the Excavator is from a place situated outside the state of Tamil Nadu, the petitioner was expected to pay 13% of entry tax on the price paid for the purchase of the excavator, as per Section 3 of the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990. Accordingly, the entry tax due from the petitioner amounts to Rs.4,11,450/-. The petitioner was asked to pay the said sum, within 15 days from the receipt of the impugned notice.
4. The main contention of the learned counsel appearing for the petitioner is that the impugned notice had been issued by the respondent without giving an opportunity to the petitioner to put forth her case. Further, a Division Bench of this Court in its Judgment, dated 2.11.2006, made in W.A.No.1219 of 2006, had held that an excavator is not a motor vehicle and therefore, levy of entry tax, under the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990, cannot be made.
5. The learned counsel appearing for the petitioner had also relied on the decision of the Supreme Court made in BOLANI ORES LTD., Vs. STATE OF ORISSA (AIR 1975 SC 17) and the decision of the High Court of Kerala, in W.A.No.2665 of 2005 (B), INTELLIGENCE OFFICER & OTHERS Vs. M/S.RAY CONSTRUCTION LTD, wherein, it was held that an excavator is not a motor vehicle liable for the levying of entry tax.
6. The learned counsel appearing for the respondent had not refuted the submissions made by the learned counsel appearing on behalf of the petitioner.
7. In such circumstances, in view of the decision of the Division bench of this Court, dated 2.11.2006, made in W.A.No.1219 of 2006, the impugned notice of the respondent, dated 23.9.2009, is set aside. The respondent is permitted to inspect and reassess the machinery, the Tata Hitachi Hydraulic Excavator after issuing a fresh notice to the petitioner and to pass appropriate orders thereon, with regard to the levying of entry tax, in view of the decision of the Division Bench of this Court, dated 2.11.2006, made in W.A.No.1219 of 2006. The writ petition is ordered accordingly. No costs. Consequently, connected M.P.(MD) No.1 of 2009 is closed.
lan To:
The Assistant Commissioner Commercial Tax Office Perumal Kovil Street Sivagangai- 630 561