COMMISSIONER, COMMERCIAL TAX Vs. ANAND TYRES

JUDGEMENT

(1.) This revision has come up under Section 58 of the U.P. Value Added Tax Act, 2008 at the instance of Revenue, who is aggrieved by the order of U.P. Trade Tax Tribunal (hereinafter referred to as the "Tribunal"), whereby the Second Appeal No. 60 of 2008 for the Assessment Year 2003-04, instituted by Revenue, has been dismissed, vide judgment and order 23.05.2009, confirming the order dated 26.11.2007 passed by First Appellate Authority, whereby it has held that "Hydraulic Excavator" is not included in Entry No. 2 of the Schedule attached to Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007(hereinafter referred to as the "Act, 2007"), i.e., "machinery and spare parts", but is governed by Entry No. 13 of the Schedule, i.e., Motor Vehicles of all kinds.

(2.) The question of law raised in this revision is, "whether "Hydraulic Excavator" is a machine under Entry 2 or motor vehicle under Entry 13 of the Schedule attached to Act, 2007."

(3.) The dealer, M/s Anand Tyres, Jhokhan Bagh, Jhansi imported "Hydraulic Excavator" and claimed that the said item is not a machinery under Entry 2 of the Schedule to Act, 2007 but is a motor vehicle under Entry 13. The claim of dealer was rejected by Assistant Commissioner, Trade Tax Division-3, Jhansi vide order dated 31.07.2007 and holding that disputed item is a machinary, hence is taxable at 2%, imposed entry tax of Rs. 31,938/-, whereagainst the respondent-dealer preferred Appeal No. 453 of 2007, which was allowed by Joint Commissioner of Appeal vide order dated 26.11.2007 holding that disputed item is governed by entry "motor vehicles of all kinds". Thereagainst the Revenue preferred Second Appeal No. 60 of 2008, which has been dismissed by Tribunal vide impugned order dated 23.05.2009.