JUDGEMENT
DESAI, J. -
(1.)THE question which arises for our consideration in this reference is whether the Massey-Ferguson farm tractor sold by the assessee is an "agricultural machinery" within the meaning of entry 12 of Schedule C to the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the Act" ).
(2.)THE assessee is a firm carrying on business as a dealer in the goods manufactured by Messrs Tractors and Farm Equipment Private Limited, Madras. THE manufacturers are successors to Messrs Massey-Ferguson (India) Limited and are associated with Messrs Massey-Ferguson (U. K.) Ltd. THEy are engaged in the manufacture and marketing of Massey-Ferguson farm machinery in India including Massey-Ferguson farm tractors and farm implements of various kinds. THE assessee sold a tractor of the above-mentioned variety to one Bhikhabhai Hamirbhai under bill No. TF/140 dated 24th March, 1965. THE assessee then made an application to the Commissioner of Sales Tax under section 52 of the Act for determination of the question as to what was the rate of tax payable on the sale of the said tractor. Along with the application, the assessee submitted a copy of the bill and later on the assessee produced before the Deputy Commissioner of Sales Tax, who heard the said application, additional evidence in the shape of certain booklets and pamphlets describing the essential characteristics of Massey-Ferguson tractors. THE contention of the assessee before the Deputy Commissioner of Sales Tax was that the tractors in question were manufactured with the object, design and mechanism which made them more suitable for being used for agricultural purposes. THE assessee, therefore, contended that the tractor in question was "agricultural machinery" covered by entry 12 of Schedule C and was liable to be taxed at the rate mentioned in the said entry. THE Deputy Commissioner of Sales Tax by his order dated 30th November, 1965, held that the tractor in question was not "agricultural machinery" within the meaning of the said entry but was covered by the residuary entry 22 of Schedule E and was liable to be taxed accordingly. In coming to this conclusion, the Deputy Commissioner of Sales Tax relied upon the decision of the Gujarat Sales Tax Tribunal (hereinafter referred to as "the Tribunal") in the case of M/s. Vicas Corporation (vide Appeal No. 31 of 1960 decided on 22nd February, 1961) and also upon the decision of the Madhya Pradesh High Court in M/s. Agrawal Bros. v. Commissioner of Sales Tax, Madhya Pradesh ([1965] 16 S. T. C. 860 ). According to the Deputy Commissioner of Sales Tax, the question was covered by the said two decisions and it was, therefore, not possible to accept the contention of the assessee that the tractor in question was "agricultural machinery" within the meaning of entry 12 of Schedule C to the Act.
Dissatisfied with the order above-mentioned, the assessee preferred an appeal to the Tribunal. Before the Tribunal, the assessee once again relied upon the booklets and pamphlets produced by it before the Deputy Commissioner of Sales Tax and also upon a certificate dated 15th February, 1961, issued by Mr. Alexander Behr, Marketing Manager, Tractors and Farm Equipment Private Limited, Madras, who as stated above, were the manufacturers of the tractor in question, in support of its contention that the tractor sold by them was "agricultural machinery" within the meaning of entry 12 of Schedule C to the Act. The assessee contended before the Tribunal that the tractor in question was manufactured for agricultural purposes and having regard to its design and special features and its general and common use for agricultural purposes, it was "agricultural machinery" within the meaning of entry 12 of Schedule C. The Tribunal observed that the literature produced by the assessee did show that there were certain tractors which could be called farm tractors and that certain special arrangements were undoubtedly made in the tractor in question for attaching thereto the agricultural implements manufactured by the said manufacturer. The Tribunal, however, pointed out that the fact still remained that it was only when agricultural implements were attached to the tractor in question that the tractor could be used for agricultural purposes and that if such implements were not attached, it could also be used for purposes other than agriculture. The Tribunal further observed that merely because certain contrivances were made in the tractor in question because of which agricultural implements could be fitted to the tractor and the tractor could work in a better way for agricultural operations it would not be a sufficient factor to turn the tractor into "agricultural machinery". The Tribunal accordingly found that it could not be said that the principal and primary use of the tractor in question was agricultural and hence the tractor in question would not fall within entry 12 of Schedule C. In arriving at its decision, the Tribunal relied principally upon the decision of the Bombay High Court in Pashabhai Patel and Co. (P.) Ltd. v. Collector of Sales Tax, Maharashtra State ([1964] 15 S. T. C. 32].
The assessee being dissatisfied with the order of the Tribunal made an application to the Tribunal requiring it to refer to this court the question of law arising out of its order, namely, whether the tractor in question was an agricultural machinery within the meaning of entry 12 of Schedule C to the Act and the Tribunal has accordingly referred the following question to this court : " Whether on the facts and in the circumstances of the case the sale of Massey-Ferguson tractor sold by bill No. TF/140 dated 24th March, 1965, is an agricultural machinery covered by entry 12 of Schedule C to the Bombay Sales Tax Act, 1959, and liable to tax accordingly ?"
(3.)ALONG with the statement of the case, the Tribunal has annexed at annexure 3 a copy of the said bill, at annexure 4 a list of books referred to in the statement of the case and cited before the Tribunal and at annexure 5 a copy of the certificate dated 15th February, 1961, given by the marketing manager of the Tractors and Farm Equipment Private Ltd. , to which we have referred above.
Before we proceed to answer the question which has been referred to us for our opinion we would like to make a few preliminary observations. A tractor is generally speaking a self-propelled vehicle worked either on diesel or petrol and is commonly used to provide motive force. The following passage in the Encyclopaedia Americana, 1958 Edition, Vol. XXVI, at page 744, throws light on the features and functions of a tractor : " Tractor, trakter, a self-propelled machine that travels on roads or rough ground and, as a rule, draws a load. It is a vehicle designed to perform a great variety of mechanical operations. It may carry its own equipment or be constructed to haul either accessory machinery or other vehicles. Tractors do not only replace horse-power in locomotion, but take over many functions - such as loading, picking, spraying, threshing, logging - formerly executed by manual labour. Their widest use is in farming, landscaping, all kinds of hauling, and construction work. At the same time, they often serve as a mobile power source. The modern tank and other armoured vehicles represent basically their conversion to military purposes. According to their mode of locomotion, tractors are of two different types, mounted either on wheels or on tracks (crawlers ). "