VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Original Petitions raise the question whether excavators and road rollers are motor vehicles within the definition of S. 2 (28)of the Motor Vehicles Act (hereinafter referred to as 'the M. V. act ). The further contention raised was that (1) whether the Registering Authorities can insist on the payment of entry tax as a condition precedent for registration of the vehicles and (2) whether the Central Sales Tax paid can be deducted under s. 4 (2) of the Kerala Tax on Entry of Motor Vehicles into Local areas Act (hereinafter referred to as 'the Entry Tax act) -

(2.) THE Entry Tax Act came into force on 5. 7. 1994. Under s. 3, tax is levied and collected by the name entry tax on the entry of any motor vehicle into any local area for use or sale therein which is liable for registration in the State under the Motor Vehicles Act, 1988. Tax has to be paid at such rate or rates, as may be fixed by the Government by notification. Constitutional validity of the Entry Tax Act was challenged before this Court and was upheld by the decision of this court reported in Rajan v. State of kerala (1995 (2) KLT 369 ). But in those cases exigibility of entry tax for excavators and road rollers did not come for consideration. S. 2 (28) of the M. V. Act defines motor vehicle as follows: "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis 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 adapted 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".

(3.) SO far as road rollers are concerned refer to O. P. No. 14158/95. Ext. P4 shows that a certificate of road worthiness has been issued in Form 22 under Rr. 47 (g) and 127. Certificates states that the vehicle complies with the provisions of the Motor Vehicles Act, 1988 and the rules made thereunder. Road roller is used for crushing and smoothing the road surface which is part of the execution of works contract. It is also admitted that the vehicle has to be registered under the provisions of the Motor Vehicles Act. The question to be considered is whether these two motor vehicles are motor vehicles as defined in the M. V. Act. Under S. 2 (28) of the M. V. Act what is excluded from the M. V. Act is a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other exclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty five Cubic centimetres. No argument was addressed that the vehicle concerned is coming within the last exception. What is argued is that these vehicles are only used in a factory or any other enclosed premises. But it is not denied that the vehicle is adapted for use upon roads. Learned counsel for the petitioners submitted that merely because the vehicle can be used upon roads it does not mean that it is a motor vehicle, since it is exclusively used within the factory premises or within any other enclosed premises.