IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01-07-2009 Coram THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA and THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.A. No. 2396 of 2001 and W.A.M.P. No. 18533 of 2001 -o- Madras Refineries Limited (now presently Chennai Petroleum Corporation Ltd) Anna Salai, Teynampet Chennai – 600 018 (Cause title accepted as per Order of Court dated 18.10.2001) .. Appellant/Petitioner Versus 1. The State of Tamil Nadu rep. By its Secretary to Government Commercial Taxes & Religious Endowments Department Fort St. George Chennai – 600 001 2. The Special Commissioner and Commissioner of Commercial Taxes Ezhilagam, Chepauk Chennai – 600 005 3.The Deputy Commercial Tax Officer, Nannilam. .. Respondents/Respondents Appeal filed under Clause 15 of Letters Patent against the Order dated 08.08.2001 made in WP No. 18592 of 1994 and WMP No. 28241 of 1994 on the file of this Court. WP 18592/1994:The Petition filed under Art.226 of the constitution of India praying to issue a writ of Certiorarified Mandamus to call for the records of the third respondent herein in RC No.1528/94/A2 and quash the order therein dt.10.10.1994 and further direct him not to collect entry tax in respect of the value of chassis purchased locally in the State of Tamil Nadu. For Appellant : Mr. R.L. Ramani, Senior Counsel for Mr. Chandran Karuppiah https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr. Haja Nazarudeen Special Government Pleader (Tax) JUDGMENT (Judgment of the Court was delivered by F.M. IBRAHIM KALIFULLA, J) An interesting question as regards the demand for payment of entry tax as contemplated in The Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990 has come up for consideration at the instance of the appellant, who sought for a clarification from the Special Commissioner and Commissioner of Commercial Tax, who, in his clarification letter dated 29.07.1994 clarified that the entry tax has to be paid on the full value of the new vehicle being registered, irrespective of the fact whether the chasis was purchased in Tamil Nadu or elsewhere and it has already suffered sales tax, hence, the appellant is liable to be assessed under the Act as a full vehicle since it is a new commodity, liable for new registration under the Motor Vehicles Act. 2. Shorn of unnecessary details, the required facts are that the appellant purchased a heavy vehicle chasis from M/s. Ashok Leyland Limited for which necessary tax under the provisions of Tamil Nadu General Sales Tax Act was levied and paid. The said chasis was sent by the appellant to Bombay for the purpose of mounting a special tank and after completing the body building, the chasis, along with the tanker, was brought back to Tamil Nadu for which the appellant stated to have paid entry tax on the value of tank built on the chasis. When the appellant wanted to get the vehicle, namely, the fire truck registered under the provisions of Tamil Nadu Motor Vehicles Act, the question arose as to whether the appellant was liable to pay entry tax as contemplated under the provisions of The Tamil Nadu Tax on Entry of Goods into Local Areas Act, 1990, hereinafter referred to as 'The Act', on the whole of the vehicle i.e., including the chasis, along with the body mounted on it. It was in the course of that process, when the registering authority insisted the appellant for payment of entry tax under the Act for the whole of the vehicle, the issue went before the third respondent. When the proceedings were pending before the third respondent, the appellant sought for a clarification from the second respondent, who in turn, clarified the position in his communication dated 29.07.1994 to the following effect:- "The criterion for charging entry tax is whether there is liability for new registration in the local area of Tamil Nadu. If thee is liability for new registration, then the entry tax has to be paid on the full value of the new vehicle being registered, irrespective of whether the chasis was purchased originally in Tamil Nadu or elsewhere. The entry tax is liable on the full vehicle (even if chasis was originally purchased in https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu and suffered Tamil Nadu General Sales Tax and sent out for body building) since the fully built vehicle is a new commodity liable for new registration under the Motor Vehicles Act." 3. Subsequent to the clarification issued by the second respondent, the third respondent assessed the entry tax payable by the appellant under the Act by order dated 10.10.1994 in a sum of Rs.4,94,339/- and after giving credit to the entry tax already paid by the appellant, determined the tax liability in respect of the two vehicles in a sum of Rs.5,93,496/-. Aggrieved by such assessment, the appellant has filed WP No. 18592 of 1994 and the learned Judge, having dismissed the writ petition, has come forward with the present writ appeal. 4. We heard Mr. R.L. Ramani, learned senior counsel appearing for the appellant and Mr. Haja Nazarudeen, learned Special Government Pleader for the respondents. 5. In his illuminating submission, the learned senior counsel for the appellant contended that the appellant has purchased the chasis in this State, which had already suffered sales tax under the provisions of the Tamil Nadu General Sales Tax Act, thereafter, took the vehicle to Bombay for mounting a tanker to be built on the chasis and after the tanker was mounted on the chasis and after paying necessary sales tax in the State of Bombay, brought back the tanker mounted on the chasis. Therefore, the only liability of the appellant can be in respect of the tanker alone and not on the chasis, inasmuch as, the chasis was not purchased and brought into the State of Tamil Nadu for the purpose of sale. The learned senior counsel, by referring to the various provisions contained in the Act as well as the notification dated 12.03.1983, contended that having regard to the specific reference to the body built on chasis of motor vehicles, which are meant for mounting of motor vehicles, having been separately mentioned in the said notification, for the purpose of prescribing the rate of tax, the body, which was built in another State and brought into the State of Tamil Nadu should be independently and exclusively treated as motor vehicle for the purpose of levy of tax under the Act. In support of his submission, the learned senior counsel for the appellant relied on the decision of the Division Bench of Allahabad High Court reported in (i) (Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. Pritam Singh) 22 STC 414 (ii) the Division Bench decision of the Andhra Pradesh High Court reported in (Pothula Subba Rao vs. The State of Andhra Pradesh) 30 STC 69 and (iii) the decision of the learned single Judge of the Punjab and Haryana High Court reported in (Ambala Coach Builders vs. The State of Haryana and another) 39 STC 44. 6. The learned senior counsel for the appellant lastly contended that in any event, the levy of tax at the rate of 20% by treating the vehicle as one vehicle, as mentioned under Serial No.5 of the notification dated 12.03.1993, in the impugned order dated 10.10.1994, was not correct and therefore the same requires to be https://hcservices.ecourts.gov.in/hcservices/ corrected. 7. As against the above submissions, the learned Special Government Pleader for the respondents contended that the levy of entry tax under the Act has got its own special features and the action of the third respondent, in having determined the tax liability, was, therefore, in accordance with the provisions of the Act and the same does not call for interference by this Court. According to the learned Special Government Pleader, the chasis, having been purchased by the appellant in this State, went out of the State and when it returned back with a tanker mounted on it, the composition of the vehicle changed in every respect and consequently when the provisions of the Act are applied, the same call for levy of tax in the manner in which it was made by the third respondent under the order, which was impugned in the writ petition. The learned Special Government Pleader also contended that if the appellant has got any grievance as regards the rate of tax, the appellant will have to work out his remedy before the appellate authority constituted under the Act and in the manner prescribed therein. 8. Having heard the respective counsel, we are not inclined to accede to the submissions of the learned senior counsel for the appellant. In order to determine the points raised in this appeal, it will be appropriate to refer to some of the provisions of the Act and its salient features. The required provisions are Section 2 (a), 2 (b), 2 (c), 2 (d), 2 (g), 2 (i), 3 (2) and 4 (2) of the Act. The relevant part of the said provisions are as under:- 2. Definitions.- In this Act, unless the context otherwise requires, - (a) "accessories" means the car air- conditioner, music system and any other article fitted to a motor vehicle and which is not included in the original invoice. (b) "appellate authority" means an appellate authority appointed under Section 6; (d) "entry of motor vehicle into a local area" with all its grammatical variations and cognate expressions, means entry of motor vehicle into a local area from any place outside the State for use or sale therein; (g) "importer" means a person who brings a motor vehicle into a local area from any place outside the State for use or sale therein; and who owns the vehicle at the time of its entry into the local area; (i) "motor vehicle" means a motor vehicle as defined in clause (28) of Section 2 of the Motor Vehicles Act, 1988; NOTES "The definition of this term in Section 2 (28) of the Motor Vehicles Act, incorporated https://hcservices.ecourts.gov.in/hcservices/ here by reference is as under:-- "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 chasis 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 twenty- five cubic centimetres; (k) "Purchase value" means the value of a motor vehicle, as ascertained from the original invoice and includes the value of accessories fitted to the vehicle, insurance, excise duties, countervailing duties, sales tax, transport fee, freight charges and all other charges incidentally levied on the purchase of a motor vehicle; Provided that, where purchase value of a motor vehicle is not ascertainable on account of non-availability or non-production of an original invoice or when the invoice produced is proved to be false or if the motor vehicle is acquired or obtained otherwise than by way of purchase, then the purchase value shall be the value or price at which motor vehicle of like kind or quality is sold or is capable of being sold, in open market. 3. Levy of Tax –(1)....... (2) The tax shall be payable by an importer in such manner and within such time as may be prescribed. 4. Reduction in tax liability – (1)...... (2) Where an importer who, not being a dealer in motor vehicles, had purchased the motor vehicle for his own use in any Union Territory, or any other State then his liability under this Act shall, subject to such conditions as may be prescribed, be reduced to the extent of the amount of tax paid, if any, under the law relating to General Sales Tax as may be in force in that Union Territory or State; 9. A conspectus reading of the various definition clauses referred to above, in particular Section 2 (a), 2 (b), 2 (d), 2 (g), 2 (i) and 2 (k) of the Act makes it clear that a body meant for mounting on a chasis by itself does not fall under the definition of "motor vehicle" but by virtue of the definition 'accessories', under Section 2 (a) read along with Section 2 (k) would make such a body https://hcservices.ecourts.gov.in/hcservices/ mounted on the chasis, the value of which also to be determined for the purpose of arriving at the purchase value of motor vehicle. In other words, in order to assess the purchase value of the motor vehicle under Section 2 (k), the value of all accessories fitted to the vehicle, along with certain components are also to be taken into account. When we apply the above legal provision to the facts of this case, inasmuch as the motor vehicle of the appellant was the chasis owned by it, when it comes to the question of assessing its purchase value, as a motor vehicle into the local area of this State, with a tanker mounted on it, which was built in a State outside the State of Tamil Nadu, the said tanker falls squarely within the definitions of 'accessories' and the value of such accessories along with the value of motor vehicle, as ascertained from the original invoice had to be taken into account. It is on the said value alone the entry tax liability can be assessed by the original authority. There is no dispute that the appellant is an 'importer' as defined under Section 2 (g) of the Act and by virtue of Section 3 (2) of the Act, the appellant is liable to pay Entry Tax in the manner determined and as assessed by the third respondent. So far as the provisions of reduction in tax liability, as provided under Section 4 (2) of the Act, the said benefit, in so far as the tax paid on the chasis registered may not be available in the light of the specific provisions contained in the said sub- section. We are therefore of the considered opinion that by applying the above referred to provisions contained in Section 2 and Section 3 (2) of the Act, the liability falls on the appellant and the impugned order dated 10.10.1994 was well determined. For the said reasons, we are not inclined to accept the submissions of the learned senior counsel for the appellant by relying upon the various decisions cited before us and consequently, the submissions of the learned senior counsel for the appellant has to be rejected. 10. As far as the decision reported in (Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. Pritam Singh) 22 STC 414, at the outset, it will have to be stated that the definition clause, with reference to which the Division Bench of the Allahabad High Court reached the conclusion is to the effect that the body mounted on a chasis can be independently construed as a motor vehicle. Therefore, the said decision cannot be applied to the facts of this case, inasmuch as, the definition contained under the Act is different from the definition, based on which the above conclusion was reached by the Allahabad High Court. In the definition considered by the Allahabad High Court, the Division Bench posed a question for itself as to whether the body of the motor vehicle is a component part of a motor vehicle. It was in that context, the Allahabad High Court took the view that the body mounted on the chasis, being a component of motor vehicle, would fall within the specific provision, applicability of which was considered by the Division Bench. Inasmuch as the specific provision contained in the Act is clear, which is different from the one considered by the Allahabad High Court, the same cannot be made applicable to the facts of the case on hand. 11. So far as the decision reported in (Pothula Subba Rao vs. https://hcservices.ecourts.gov.in/hcservices/ The State of Andhra Pradesh) 30 STC 69, that was a case arising under the Andhra Pradesh General Sales Tax with reference to which alone the decision came to be rendered, wherein, it was pointed out by the Division Bench that by virtue of the specific item mentioned in the second Schedule of Andhra Pradesh General Sales Tax Act, the body of motor vehicle would fall within the residuary clause of component part of motor vehicle and thereby it could be independently treated as a motor vehicle. Here again, it will have to be stated that having regard to the specific provisions contained in the Act, as compared to the consideration which weighed with the Division Bench of the Andhra Pradesh High Court, which dealt with the issue in the light of the specific provisions contained in the Andhra Pradesh General Sales Tax Act, whatever stated in the said decision cannot be applied to the case on hand. 12. Similarly, the decision of the learned single Judge of the Punjab and Haryana High Court, reported in (Ambala Coach Builders vs. The State of Haryana and another) 39 STC 44 also cannot be applied to this case, inasmuch as, the said decision came to be rendered by applying a particular entry in Schedule A of Haryana General Sales Tax Act, which provision varies in very many degrees, as compared to the provisions referred to in the earlier part of our order, as defined under the Act. We are therefore, not in a position to apply any of the decisions to the facts of this case. 13. Having regard to our above conclusion, we do not find any good grounds to interfere with the order passed by the learned single Judge upholding the impugned order. 14. As far as the contention of the learned senior counsel for the appellant that based on different entries contained in the notification dated 12.03.1993, fixing different rates of tax, we only state that it is a matter, which is concerning the quantum of tax liability determined by the third respondent, for which remedy of appeal is provided under the Act. When once an order of assessment under Section 8 of the Act is passed, the appellant is entitled to work out his remedy by way of an appeal under Section 13 (1) of the Act, further appeal before the Joint Commissioner of Commercial Tax as specified under Section 13 (2) of the Act, besides, a revision remedy available under Section 14 of the Act to the Commissioner of Commercial Taxes. The only hurdle which may come in the way of the appellant working out its appeal remedy is the period of limitation prescribed under Section 13 (3) of the Act within which the appellant has to challenge the order passed by the original authority i.e., within 30 days from the date of receipt of the order and that too after paying the entire amount of tax with penalty, if any, in the Government Treasury. 15. The present writ petition, challenging the impugned order dated 10.10.1994, came to be filed by the appellant on 08.11.1994, i.e., within 30 days from the date of receipt of the order. It is stated that the appellant had the benefit of interim stay during the pendency of the writ petition as well as the writ appeal by the Division Bench of this Court. In such circumstance, we are of the https://hcservices.ecourts.gov.in/hcservices/ considered opinion that in the interest of justice, appellant should be permitted to work out his remedy of appeal, as prescribed under Section 13 (1) of the Act, by complying with the condition imposed under sub-section (3) of Section 13, whereunder the appellant is liable to pay the entire amount of tax with penalty, if any in the Government treasury. We say so, because the appellant has diligently challenged the correctness of the impugned order dated 10.10.1994 by filing a writ petition and the period during which the writ petition was pending and the further period when the writ appeal before the Division Bench of this Court was pending all these years, should not stand in the way of the appellant working out its statutory remedy available under the Act, at least in so far as it relates to the rate of tax applied by the third respondent. 16. Therefore, while upholding the order of the third respondent dated 10.10.1994 insofar as its decision that the whole of the vehicle is liable to be assessed under the Act for the purpose of levy of entry tax, if the appellant is aggrieved against the rate of tax applied in the impugned order, it is open to the appellant to work out its remedy by filing an appeal before the appropriate authority constituted under Section 6 of the Act, within a period of 15 days from the date of receipt of a copy of this order. 17. The writ appeal fails and is dismissed. All Mps also stand dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To 1.The Secretary to Government Commercial Taxes & Religious Endowments Department, Fort St. George Chennai – 600 001 2. The Special Commissioner and Commissioner of Commercial Taxes Ezhilagam, Chepauk, Chennai – 600 005 3.The Deputy Commercial Tax Officer, Nannilam. +1cc to K.J.Chandran, Advocate Sr 28087 PKB(CO) km/7.8. WA No. 2396 of 2001 https://hcservices.ecourts.gov.in/hcservices/