Mukesh R. Shah, J.@mdashBy way of this petition under article 226 of the Constitution of India the petitioner-State of Gujarat, through the Commissioner of Commercial Tax, Ahmedabad, has prayed for an appropriate writ, order or direction to quash and set aside the impugned order passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal") dated June 25, 2007 in Rectification Application No. 7 of 2006 as well as the judgment and order dated January 29, 2007 passed in Second Appeal Nos. 905 and 906 of 2005 by which the learned Tribunal has allowed the aforesaid appeals by quashing and setting aside the orders dated February 22, 1995 and March 31, 2005 of the Deputy Entry Tax Commissioner and the Assistant Commissioner of Sales Tax under the Gujarat Entry Tax Act, 2001 by holding that the "dumper" is not a "specified goods" under entry at Serial No. 1 of Part I of the Schedule to the Gujarat Entry Tax Act, 2001 (hereinafter referred to as "the Act") applicable to motor vehicles as stated in the said entry and, therefore, is not subjected to payment of entry tax under the Act. By quashing and setting aside the aforesaid orders and allowing the said appeals and holding so the learned Tribunal has directed the Department to refund the amount of entry tax recovered under the Act. Heard Shri Jaimin Gandhi, learned Additional Government Pleader appearing on behalf of the petitioner and Shri Sudhir Mehta, learned advocate appearing on behalf of the respondent.
2. The short question, which is posed for consideration of this court is, whether the "dumper" can be said to he "motor vehicle" and can he subjected to entry tax under the Act, more particularly, treating the same as "specified goods" under entry at serial No. 1 of Part I of the Schedule to the Act.
3. Shri Jaimin Gandhi, learned Additional Government Pleader appearing on behalf of the petitioner, relying upon the decision of the Division Bench of this court dated July 15, 2011 in the case of Reliance Industries Ltd. v State of Gujarat rendered in Special Civil Application No. 11848 of 2005 and other allied special civil applications, has vehemently submitted that "dumper" purchased and brought into within the State of Gujarat by the respondent can be said to be a motor vehicle and, therefore, would fall within the entry at serial No. 1 of Part I of the Schedule to the Act. He has heavily relied upon paragraph No. 42 of the said decision. It is submitted that therefore when the "dumper" can be said to be motor vehicle and the same would fall within entry at serial No. 1 of Part I of the Schedule to the Act, the learned Tribunal has committed a grave error in not treating the "dumper" as "specified goods" covered under entry at serial No. 1 of Part I of the Schedule to the Act and has committed a grave error in holding that the "dumper" was not subject to payment of entry tax under the Act. Making the above submissions and relying upon the above decision, it is requested to allow the present special civil application.
4. Shri Sudhir Mehta, learned advocate appearing on behalf of the respondent, has tried to oppose the present special civil application by submitting that in entry at serial No. 1 of Part I of the Schedule to the Act there is no specific mention about the "dumper" and, therefore, the learned Tribunal has rightly held that the "dumper" was not subject to payment of entry tax under the Act. It is submitted that as there is no specific mention to the "dumper in the said entry at serial No. 1 of Part I of the Schedule to the Act, it would be under entry 39(6) or 98A of the Gujarat Sales Tax Act, 1969.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the short question, which is posed for the consideration of this court is, whether the "dumper" can be said to be motor vehicle or not. The same came to be considered by the Division Bench of this court in the case of Reliance Industries Ltd. (Special Civil Application No. 11848 of 2005 decided on July 15, 2011--Gujarat High Court) and considering the provisions of the Motor Vehicles Act, it is specifically held that the "dumper" cannot be taken out of the purview of the motor vehicles. So far as entry tax is concerned, there is no specific definition of "motor vehicles". Under the circumstances, to find out whether the "dumper" can be said to be a motor vehicle or not, one has to look at the other provisions of the Act, more particularly, the Motor Vehicles Act. Once considering the provisions of the Motor Vehicles Act, it is held that the "dumper" can be said to be motor vehicle, in that case, whether the "dumper" is subjected to entry tax under the Act or not, is required to be considered.
5.1. Entry at Serial No. 1 of Part I of the Schedule to the Act at the relevant time reads as under:
Therefore any motor vehicles including motor cars, motor taxi-cabs, motoettes, motor omnibuses, motor vans, motor lorries, motor cycles, motorcycle combinations, motor scooters, mopeds is subjected to entry tax under the Act as observed hereinabove and as per the decision of the Division Bench of this court in the case of Reliance Industries Ltd. (Special Civil Application No. 11848 of 2005 decided on July 15, 2011--Gujarat High Court) and can be said to be motor vehicle. Merely because "dumper" is not specifically mentioned in the entry at serial No. 1 of Part I of the Schedule to the Act but if it is found to be motor vehicle, in that case, it cannot be said that the "dumper" is not subjected to entry tax. Considering the fact that "dumper" can be said to be motor vehicle, the same is subjected to entry tax under the Act.
6. Under the circumstances, when "dumper", can be said to be motor vehicle it will be "specified goods" covered under entry at serial No. 1 of Part I of the Schedule to the Act and, therefore, the same is subjected to payment of entry tax under the aforesaid Act. Under the circumstances, the impugned orders passed by the learned Tribunal holding contrary cannot be sustained and the same deserves to be quashed and set aside. In view of the above and for the reasons stated hereinabove, the present special civil application succeeds and the impugned orders passed by the learned Tribunal dated June 25, 2007 in Rectification Application No. 7 of 2006 as well as the judgment and order dated January 29, 2007 passed in Second Appeal Nos. 905 and 906 of 2005 are hereby quashed and set aside with necessary consequences that may follow. Rule is made absolute to the aforesaid extent. No order as to costs.
