SHARMA, J. - (1.) THESE matters raise a common question as to whether Excavators are motor vehicles within the meaning of the Rajasthan Motor Vehicles Taxation Act, 1951 (for short the Taxation Act) and are accordingly taxable thereunder.
(2.) EXTRA ordinary jurisdiction applications were filed before the Rajasthan Taxation Tribunal Jaipur by the petitioners. All such applications stood transferred to this court after abolition of the Tribunal. The grievance expressed by the petitioners in all these petitions is that the excavators are not liable to levy of tax under the provisions of the Taxation Act and Rules made thereunder. The facts of STR No. 233 of 1999 are necessary to be incorporated to understand the controversy. The petitioner company required to procure large number of machines and equipments related to excavation and earth moving. Therefore Escorts JCB Excavator and Loader was purchased exclusively for mining purposes. It is averred that Excavator is a Machine and it did not require registration. The said equipment has been used continuously by the petitioner company exclusively within the mines area. The said machine cannot be subjected to payment of tax levied on motor vehicles. The aforesaid machine was seized by the Motor Vehicles Inspector RTO Jaipur vide seizure memo No. 1 book No. 327 dated January 2, 1999, but date has been wrongly mentioned as January 2, 1998. In the panchanama it was recorded that at the time of checking the vehicle was plied without registration on a nationalised route and the driver of the vehicle failed to submit the documents pertaining to payment of tax etc. It is pleaded in the petition that the machine was seized when it was taken to the factory for certain repairs and it has been wrongly mentioned that the machine was being plied on the road and it was standing idle at Kanota from where it was seized. Prior to the seizure neither any notice was given nor any opportunity was given to the petitioner to explain its position. The Motor Vehicles Inspector simply came to the spot and immediately seized the vehicle in a pre-determined mind. On 4th Jan. 1999 the petitioner came to know that the respondent RTO has issued instructions to its officers to seize all such machines. The petitioner has been using this machine for the last 7 years but till date no objection was raised and all of a sudden the Inspector seized the machine which costs approximately 17 lacs rupees in the year 1992. After much persuation the respondent did not release the machine but the petitioner was handed over a notice of demand raising tax dues to the tune of Rs. 85,260/- for the period October 1992 to March, 1999. Therefore the petitioner filed writ petition No. 100 of 1999 in the High Court and the vehicle was directed to be released. The petitioner filed instant petition against issuance of the demand notice. The petitioner moved an amendment application seeking quashing of the Notifications dated May 22, 1997 and June 19, 1992. No objection was raised in respect of amendment application, therefore I permitted the learned counsel to make submissions in respect of aforesaid Notifications also. The case of the respondent State of Rajasthan in the reply is that the respondents are treating excavators/loaders as transport vehicles and they have rightly charged the tax on such vehicles under the provisions of the Taxation Act. Issuing of Notifications dated 31. 3. 1997, 24. 4. 1999 and 19. 6. 1992 have been admitted. The respondents further averred that the petitioner has no right to challenge the Notifications or the power to impose tax and the petitions are absolutely frivolous and groundless and deserves to be dismissed. The petitioners are using the excavator/loader which is nothing but a motor vehicle suitable for use on roads. Entry 57 of the VII Schedule to the Constitution of India authorises imposition of taxes on vehicles, whether mechanically propelled or not suitable for use on roads. The excavator/loader/dumper or whatever name it may be called is a motor vehicles which is suitable for use on roads and, there is no illegality in the imposition of tax on such vehicles. The respondent denied that the vehicle of the petitioner does not come in the category of Motor Vehicles Act, 1988. In the additional plea the respondents submitted that the Rajasthan Taxation Tribunal in similar matters have already held that excavators come within the definition of the `motor vehicles' as per the Taxation Act and the owners of the excavator are liable to pay tax in accordance with the Notifications issued by the State Government for this purpose. I have reflected over the rival submissions and carefully scanned the material on record.
(3.) THE Taxation Act is enacted in exercise of the powers conferred on the State Legislation under Entry 57 of List II of the Seventh Schedule to the Constitution, while the Motor Vehicles Act is enacted by the Parliament in exercise of the concurrent legislative power in Entry 35 of List III of the Seventh Schedule of the Constitution. Entry 57 of List II empowers legislation in respect of taxes on vehicles, whether mechancially propelled or not, suitable for use on roads subject to the provisions of Entry 35 of List III. THE power exercisable under Entry 57 is the power to impose taxes which are in the nature of regulatory and compensatory measures. Entry 57 is solely concerned with taxes on vehicles whether mechanically propelled or not, Entry 35 deals with also the principles on which taxes on such vehicles are to be levied. "motor Vehicle" has been defined as any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source includes a chasis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adopted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty five cubic centimeters (section 2 (28) In view of the aforequoted definition, learned counsel appearing for the petitioners canvassed that excavator is not a motor vehicle. Reliance was placed on Good Year India Ltd. vs. U. O. I. (1), wherein their Lordships of the Supreme Court indicated thus : (Para 10) "a close reading of the definition of `motor vehicle' in item 34 reveals that the striking ingredient thereof is that it should have been `adapted for use upon roads'. Merely because the areas on which such heavy-movers traverse might some times includes roads also is not enough to hold that they were "adapted for use upon roads'. Such use of the heavy mover on the road may only be ancillary or incidental to the main use of it. Emphasis in the definition must be on the words "use upon road" as those words would denote the principle or dominant use and not where it may move incidentally. " ;