Shri Mangala Packs (P) Ltd. vs The Commercial Tax Officer (FCA)

M. Jaichandren, J.—Mr. A. Shanmugasundarm, the learned Government Advocate, takes notice for the respondent.

With the consent of the learned Counsels appearing on either side, the writ petition itself is taken up for final disposal.

It is submitted by the learned Counsel appearing on behalf of the petitioner that the issue involved in the present writ petition is covered by an

order of a Division Bench of this Court made in RDS Projects Ltd., v. The Commercial Tax Officer 2007-08 (13) TNCTJ.

Paragraphs 12 and 13 of the said order read as follows:

The above decisions would categorically show that the Apex Court has made a distinction between vehicles fitted with chains like caterpillars

and military tanks and others. The excavator referred to in Bose Abraham''s case (cited supra) was a motor vehicle fitted with inflated tyres and

not chain plates like caterpillars or military tanks. The excavator in question in the present case is mounted on iron plates made into chain such as

caterpillar vehicles or military tanks. Such an excavator is used for excavating the earth and loading in lorries and it cannot be used upon public

roads, since the roads would get damaged by the chains. The excavator moves around only in work sites and it is not suitable or adapted for use in

public roads. This position is also confirmed by the physical verification carried out by the respondent, as seen from his report extracted above.

The Kerala High Court in the case of Ray Constructions Limited v. Intelligence Officer, Squad No. IV, Kozhikode (cited supra) while considering

a 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 u/s 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.

Under the circumstances, the impugned show cause notice cannot be sustained and it is hereby set aside. The writ appeal is disposed of

accordingly.

Mr. A. Shanmugasundarm, the learned Government Advocate, appearing on behalf of the respondent had not refuted the statement made by

the learned Counsel for the petitioner.

In such circumstances, the writ petition is allowed, in view of the said order of the Division Bench of this Court made in RDS Projects Ltd., v.

The Commercial Tax Officer 2007-08 (13) TNCTJ. No costs. Consequently, connected M.P.Nos. 1 and 2 of 2007 are closed.