RAJESH BALIA, J. - (1.) THE petitioner is a public limited company and is a manufacturer of Cement in its Factory at Chittorgarh.
(2.) AS a part of its business activity for transportation of lime stone from the pit heads of mine to the crushers, the petitioner placed six orders for supply of six HM 1035 type dumpers to the Hindusthan Motors Limited, Tiruvulur, Tamil Nadu. The dumpers known as rear dump trucks were sold to the petitioner fitted with E -3 tyres, 2.3 CUN body extension and front suspension on cylinder as is apparent from Annexure/5, the invoice. For the purpose of transportation from the place of despatch viz. Menallathur to Chiltorgarh body and tyres were dismantled and sent separately that is apparent from despatch challan Annexure/4. The ease of the petitioner further is that out of the said six dumpers, three dumpers were cleared in the last week of July, 1993 by the Ratanpur check Post of the Commercial Taxes Department without demanding any entry tax. Two dumpers were detained by the respondent No. 4, the Officer Incharge Commercial Taxes Department Check Post, Ratanpur on August 9, 1993 and remaining one dumper was on the way. By notice Annexure/6 dated August 11, 1993, the Officer Incharge of the Check Post informed the petitioner that the petitioner is importing Hindusthan Model 1035 Dump Trucks from Tamilnadu and the vehicles are liable to be permanently used and require registration within the State of Rajasthan. Therefore, on the entry of such dump -trucks within the local area in the State of Rajasthan, it is liable to pay tax under Section 3 of the Rajasthan Tax, on Entry of Motor Vehicles in the Local Areas Motor Vehicles Act, 1988 here in after to be called as 'the Act' 1988. The petitioner has challenged the detention of dump trucks and demand of Entry Tax.
(3.) PRIMARY contention raised by the petitioner is that the Act of 1988 is ultra vires the Constitution in as much as it is nothing but an additional sales tax and not covered by Entry 52 of the State List of the Seventh Schedule of the Constitution of India.;