THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Dated this the 15th day of October 2009 Writ Petition No. 18416 of 2009. Between: M/s Escots Construction Equipment Ltd., Secunderabad. ………Petitioner vs. The Assistant Commissioner (CT) (LTU), Saroornagar Division, Hyderabad and two Others. ……..Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 18416 of 2009. ORDER: (Per GR,J) Stay of the disputed tax component of Rs. 39,02,976/- under the APGST Act 1956 (for short ‘the 1956 Act’) for the assessment year 2004-05 is the relief sought herein. The petitioner is in the business of manufacturing and marketing of material handling equipment/construction equipment like Hydraulic Mobile Cranes and Vibratory Soil Compactors in its factory located in Faridabad. The petitioner is an assessee on the rolls of the 1st respondent, which authority by the Proceedings dt. 29.3.2008 made final assessment for the year 2004-05 under the 1956 Act on a gross and net turnover of Rs. 11,01,48,336/- and Rs. 10,32,83,547/- and subjected the net turnover to tax at 12% and 1% as against 8% remitted by the petitioner in the returns submitted to the authority. Aggrieved, the petitioner preferred an appeal to the 2nd respondent. By the proceedings dt. 24.3.2009, the 2nd respondent-appellate authority partly remanded and partly dismissed the appeal. Against the portion of the appellate order which was found against the petitioner/assessee, the petitioner preferred an appeal before the STAT and applied for stay to the 3rd respondent, of collection of the disputed tax of Rs. 39,02,976/-. By the Proceedings dt. 13.7.2009, the 3rd respondent rejected the application for stay. The petitioner has already deposited 50% of the disputed tax as a condition precedent for preferring the appeal before the STAT. The substantive issue involved before the STAT is whether the goods assessed constitute machinery under entry-83 of the I Schedule or constitute motor vehicles under entry-1 of I Schedule liable to tax at 16%. On the ground that the excavators and road rollers are registered under the Motor Vehicles Act, the Supreme Court in Bose Abraham vs. State of Kerala (STC 121 614) affirmed the decision of the Kerala High Court bringing the excavators and road rollers under the classification ‘Motor Vehicle’ under the provisions of the Kerala Tax on entry of Motor Vehicles into Local Areas Act 1994. Whether the ratio of the said decision applies to an interpretation of the relevant entries of the I Schedule under the APGST Act 1956 is an issue that primarily falls to be considered by the Tribunal. In the circumstances, we consider it appropriate to grant stay of collection of disputed tax component of Rs. 39.02,976/- on condition that the petitioner deposits 75% of the amount with the 1st respondent, within a period of four weeks after taking credit for the amount already deposited as a condition precedent for preferring the appeal before the STAT. If the petitioner fails to deposit 75% of the amount as aforesaid, the disputed tax shall be levied and collected, without further reference to this Court. The writ petition is disposed of as above at the stage of admission after hearing the learned Counsel for the petitioner and the learned Special Government Pleader for Commercial Taxes. No order as to costs. ______________________ GODA RAGHURAM,J _____________________________ RAMESH RANGANATHAN,J 15.10.2009. KRB. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 18416 of 2009. Dated this the 15th day of October 2009