SUBHASH JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal arises out of the judgment of learned single Judge holding that the excavators which are machines mounted on tyres and are capable for using roads, fall within the definition of Motor Vehicles within the meaning of Motor Vehicles Act and therefore are exigible to tax under Rajasthan Motor Vehicles Taxation Act as Motor Vehicles.

(2.) Both the learned counsel state that in like circumstances similar question has been decided by a Division Bench of this Court in M/s Birla Cement Works v. State of Rajasthan in D.B. Civil Special Appeal No. 149/2000 decided on 24-2-2000 ( 251) by holding that before determining tax under the Motor Vehicles Taxation Act, an opportunity of hearing is necessary to be given to the tax payer in which tax payer is entitled to raise an issue that machines in question are not motor vehicles within the meaning of Motor Vehicles Taxation Act and that even if they are motor vehicles, the same are not liable to tax because dominant use of such vehicles is not to use public roads, or that vehicles may be liable to be registered under Motor Vehicles Taxation Act but as the vehicles which are sought to be subjected to tax are vehicles of special type meant for use in the factory or premises of the owner only cannot be subjected to tax by State Legislature. The Court has also expressed in that case that Motor Vehicles Taxation Act has to be construed in the context of legislative field reserved for the State Legislature for levying tax on motor vehicles. Under entry 57 of List II of VII Schedule of the Constitution taxes on vehicles, whether mechanically propelled or not suitable for use on roads, including tramcars subject to the provisions of Entry 35 of List III only can be imposed. An enquiry has to be made and exigibility to tax on the vehicle in each case has to be examined in the light of objections raised by the owner of the vehicle.

(3.) Accordingly learned counsel for the parties state that determination of tax in respect of excavators in question shall also have to be determined in the light of aforesaid principles in the first instance by the Taxation Officer. Inasmuch as determination of tax has to be made before raising any demand. In the present case the petitioners have come before this Court in apprehended seizure of their vehicle, which have not been subjected to tax nor any proceedings for determinating liability under Motor Vehicles Taxation Act, 1951 has been initiated.