TaxTMI 
TaxTMI 
2005 (2) TMI 778
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....r was carried in a trailer lorry bearing Reg. No. KA. 08/ 777. While the said trailer reached near Kozhikode, the Intelligence Inspector attached to the first respondent intercepted the lorry and issued a notice directing the remittance of entry tax on the value of the excavator, since according to the officer, entry tax is leviable on the goods, viz., the excavator in question. Exhibit P1 is a copy of the notice. The sister concern of the petitioner who owns the excavator filed an objection, exhibit P2. In exhibit P2, it was, inter alia, contended that the excavator which was transported to the work site detained by the officer is not a motor vehicle as defined under section 2(28) of the Motor Vehicles Act, 1988 and that this excavator does not have tyre wheels and is mounted only on chain and invited the officer for physical examination of the detained excavator. It is contended that because of the chain mounting, it cannot be plied on road and further its moving speed on other working surface is only 1.5 kilometers per hour. For the reasons, it does not require any registration under the Motor Vehicles Act for levy of entry tax on excavators. It is contended that it will not att....
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....r dated October 24, 2002, the Sales Tax Officer, the third respondent herein adjudicated the matter and held against the petitioner. Aggrieved thereby, the petitioner has preferred this original petition seeking to quash exhibit P8 order passed by the third respondent. Following exhibit P8 order, the petitioner was required by exhibit P10 notice to file return under rule 4 of the Tax on Entry of Goods into the Local Areas Rules, 1994. The finding that he is liable to pay entry tax is challenged and the petitioner has impugned the notice exhibit P10 dated October 25, 2002 as well. 2.. It is contended by the learned counsel appearing for the petitioner that the decision rendered by this Court in Baiju Joseph's case (1998) 6 KTR 1 as confirmed by the apex Court in Bose Abraham's case [2001] 121 STC 614; (2001) 9 KTR 336 is distinguishable from the present case. According to the petitioner, the said decision has no application in the factual situation arising in this case having due regard in the nature of the vehicle in question. 3.. The question that arises for consideration is as to whether the excavator said to have brought by the petitioner is a motor vehicle and whether the....
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....nically or not and uses the word 'suitable' in relation to its use on the roads. The words 'adapted for use' must therefore be construed as 'suitable for use'. At any rate, words 'adapted for use' cannot be larger in their import by including vehicles which are not 'suitable for use' on roads. In this sense, the words 'is adapted' for use have the same connotation as 'is suitable' or 'is fit' for use on the roads." 6.. Though the apex Court considered the definition contained in section 2(18) of the Motor Vehicles Act, 1939, the definition contained in section 2(28) of the 1988 Act is same as far as the main part of the definition is concerned which alone are relevant for the purpose of deciding the case. In the latter decision by the apex Court in Bose Abraham's case [2001] 121 STC 614; (2001) 9 KTR 336, while approving the decision of this Court in Baiju Joseph's case (1998) 6 KTR 1 took notice of the fact that the High Court had noticed the admissions of the appellants that the excavators and road rollers are suitable for use on roads, as referred to in paragraph 7 of the aforesaid judgment in the following terms: "We hold that the excavators and road rollers are motor veh....
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....d of 35 kilometers per hour in the case of other excavators in respect to which it was held as a motor vehicle in Baiju Joseph's case (1998) 6 KTR 1. Therefore the fact remains that the excavator in the present case cannot be taken through road on its chain without causing serious damage to the road. It is beyond reason to say that the excavator in the present case is adapted for use on the roads. Exhibit P7 communication issued by the Commissioner of Commercial Taxes though addressed to a third party, however would show that the earth mover machinery (excavator) run on chains were not considered as falling under the definition of the Motor Vehicles Entry Tax Act. Therefore while taking the decision, one cannot loss sight of the distinguishing features as are present in the excavator with which we are concerned in deciding the exigibility to be taxed under the relevant provisions of the Act having due regard to the definition contained in section 2(28) of the Motor Vehicles Act. It remains a fact that there may be more than one type of excavator; the question is as to whether the particular vehicle is a motor vehicle or not has to be decided having due regard to the features of the....