TaxTMI 
TaxTMI 
2016 (7) TMI 588
X X X X Extracts X X X X
X X X X Extracts X X X X
....rcumstances of the case, the Tribunal has erred in believing that all the equipments, goods, products, vehicle machinery used in execution of works contract resold by the opponent herein, fall under entry 35 of the notification issued under section 5[2] of the VAT Act and therefore liable to tax at the rate prescribed in it? (2) Whether in the facts and circumstances of the present case the Tribunal has erred in not giving an independent finding that, all the items under consideration were actually used for the purpose of execution of works contract as required by entry 35 of notification issued under section 5(2) of the Gujarat Value Added Tax Act, 2003? (3) Whether in the facts and circumstances of the case, the Tribunal has erred i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts: Sr No Invoice No. Date Item Name 1 RI/YAPL/-07-08/368 15.3.08 BACKHO LOADER 2 RI/YAPL/07-08/386 31.3.08 TRACK EXCAVATOR 3 RI/YAPL/07-08/379 31.3.08 LOADERS 4 Sales is not effected during the year SKID STEER LOADER 5 Sales is not effected during the year TELESONIC HANDLER 6 Sales is not effected during the year VIBRATORY TANNDEM ASPHALT COMPACTOR 7 Sales is not effected during the year VIBRATORY SOIL COMPACTOR 8 Sales is not effected during the year CRANE 4. The Joint Commissioner of Commercial Tax by his order dated 16.11.2009 ruled against the assessee. He neither stated that the eq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the works contract. The Tribunal thus allowed appeal upon which the Government has filed the present appeal. 6. Learned Assistant Government Pleader contended that the vehicles in question were in the nature of motor vehicles. They were registered as motor vehicles under Motor Vehicles Act. They therefore, could not have been treated as machines. The Tribunal therefore, committed a serious error in allowing the appeal. 7. On the other hand, learned counsel Shri Uchit Sheth for the assessee opposed the appeal contending that (i) entry 35 of the schedule is specific and includes machinery used in execution of works contract. The goods in question satisfied said description. Merely because they also happened to be motor vehicles,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the State Government may by notification in official gazette specify. The fact that the equipments in question were being used for execution of a works contract is not even disputed by the Government. The sole dispute is whether they would be machines used in execution of a works contract. Here also, it does not appear to be the case of the Government that the equipments are not in the nature of machines. Whatever doubt one may have with respect to this aspect of the matter would disappear when one peruses the judgment of the Tribunal challenged in the appeal. In such judgment, the Tribunal bestowed detailed consideration to the nature of equipments and its different uses. The appellant had produced extensive materials to establish before t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the diversity of uses to which a tractor is capable of being put. 10. Bearing in mind said principles and considering the nature of construction equipments, we have no hesitation in upholding the Tribunal's view that these were machineries used for the purpose of works contract. 11. The main question therefore, arises is whether these machines being motor vehicles, would be covered by residuary entry. The fact that these vehicles are motor vehicles and were registered or compulsorily registerable under the Motor Vehicles Act is not dispute. However, in our opinion, this would be of no consequence. Entry 35, we may recall, pertains to machinery including parts and accessories thereof used in the execution of the works contract. Ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of works contract, would be covered under entry 35. This amendment in plain terms is neither declaratory nor clarificatory; nor is given retrospective effect either specifically or by necessary implication. This would be one more ground to reinforce our belief that prior to 15.2.2010, any construction equipment which was a machinery used for execution of works contract even if it happened to be a vehicle would fall within entry 35. In this context, we may refer to the decision of the Supreme Court in the case of Gem Granites (supra) in which it was held and observed as under: "13. The introduction of the phrase "other than" in Clause(b) of sub-section 2 of Section 80HHC in 1991 in our opinion, indicates the carving out of a specific cl....