STATE OF GUJARAT Vs. DHORAJIA CONSTRUCTION CO.

JUDGEMENT

(1.) BY 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 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.