SRI BALAKRISHNA TRANSPORT Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THE challenge in this appeal is to the order of the learned single judge dated September 30, 2003 in W. P. No. 39034 of 2002 directing the appellant to pay the entry tax as per the provisions of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990.

(2.) THE appellant is a firm and they have purchased an Escort JCB excavator from Pondicherry during the year 1995 -96 as per invoice dated May 16, 1995 for a sum of Rs. 12,92,198. Since the excavator was not liable for registration under the provisions of the Motor Vehicles Act, 1988, the vehicle was not registered. While so, the appellant received a notice from the respondent on November 19, 2001 calling upon them to produce documents relating to the purchase of the excavator as well as its insurance details and the said notice was issued under Section 8 of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 (Tamil Nadu Ordinance 1 of 1990). Subsequently an order of assessment was made by the respondent on September 18, 2002 whereby the entry tax was assessed at Rs. 74,215 and penalty of Rs. 1,48,430 was imposed for their failure to comply with the provisions of the Act. The said order was challenged in W. P. No. 39034 of 2002 and among other submissions, the appellant has also contended that the levy and demand of entry tax on the import of Escort JCB excavator after a lapse of seven years was not permissible. The levy of penalty was specifically challenged on the ground that during the year 1995, when the appellant imported the JCB excavator, there was no requirement for registration under the Motor Vehicles Act and as such there was no question of filing any declaration before the authorities.

(3.) THE learned Counsel for the appellant vehemently contended that there is no provision in the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 (hereinafter referred to as the "Entry Tax Act") for assessment of an importer on his failure to submit a return. According to the learned Counsel there was no requirement at the material point of time either for registration of the vehicle under the provisions of the Motor Vehicles Act or for filing a return before the adjudicating authority. Therefore there was no legal obligation on the part of the appellant to file the return immediately after the purchase of the JCB excavator. The learned Counsel further contended that it was only after the judgment of the honourable Supreme Court clarifying the position that the JCB excavator is also liable for registration under the Motor Vehicles Act that the respondent has chosen to pass the assessment order, which is not legally sustainable, in the absence of provision conferring such right on the Department.