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2016 (7) TMI 627

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..... therefore, the assessee's claim for inclusion of its oil coolers which are used for the purpose of motor vehicle must fail. To that extent the judgement of the Tribunal is reversed. The questions are answered accordingly. Tax appeal is dismissed. - Decided against the revenue. - TAX APPEAL NO. 257 of 2015 - - - Dated:- 7-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR PRANAV TRIVEDI, AGP FOR THE OPPONENT : MR. APURVA N MEHTA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The State has filed this appeal against the judgement of the Value Added Tax Tribunal. At the time of admission, following questions of law were framed : [A] Whether the Honble Tribunal has erred in holding that oil cooler for backho loader is covered by entry No.35 of notification issued under section 5(2) of the Gujarat Value Added Tax Act? [B] Whether the Honble Tribunal has erred in holding that oil cooler for wheel loader is covered by entry No.35 of notification issued under section 5(2) of the Gujarat Value Added Tax Act? [C] Whether the Honble Tribunal has erred in holding that oil cooler for soil compactors is covered by .....

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..... des such works contract as the State Government may by notification in official gazette specify. The fact that the equipments in question were being used for execution of a works contract is not even disputed by the Government. The sole dispute is whether they would be machines used in execution of a works contract. Here also, it does not appear to be the case of the Government that the equipments are not in the nature of machines. Whatever doubt one may have with respect to this aspect of the matter would disappear when one peruses the judgment of the Tribunal challenged in the appeal. In such judgment, the Tribunal bestowed detailed consideration to the nature of equipments and its different uses. The appellant had produced extensive materials to establish before the Tribunal that equipments were in the nature of machines. Quite apart from the equipments being used for the purpose of construction related activities, we may usefully refer to two judgments cited by the counsel for the assessee. In case of Ambica Woods Works (supra) , a Division Bench of this Court was considering screen printing block tables of wood sold to textile mills. The question was whether the same can be t .....

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..... any specific entry pertaining to motor vehicle, merely because a certain equipment satisfies description of being a motor vehicle, in addition to being a machinery used in execution of works contract, cannot carry it to the residuary clause. 12. Quite apart from these features of the case, we may recall, with effect from 15.2.2010, entry 35 now includes the exclusion clause providing for excluding machinery in form of a motor vehicle or attached or mounted to a motor vehicle. By implication therefore, till this amendment even the legislature considered a motor vehicle as part of entry 35 if otherwise satisfied the description of being machinery used for works contract. Unless and until this amendment is treated either as declaratory or clarificatory, its significance would be that till these words were added in the statute, any motor vehicle which otherwise fulfilled description of being machinery used in execution of works contract, would be covered under entry 35. This amendment in plain terms is neither declaratory nor clarificatory; nor is given retrospective effect either specifically or by necessary implication. This would be one more ground to reinforce our belief that p .....

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..... . 13. In the result, the questions are answered against State and in favour of the assessee. Tax Appeal is dismissed. 5. In view of such discussion, the view of the authority that the accessory being used in a motor vehicle would therefore, not fall within entry no.35 cannot stand. However, there is an additional element to this appeal. We may record that by notification dated 15.2.2010, entry no.35 has been amended to include the following addition but excluding the machinery in form of a motor vehicle or attached or mounted to a motor vehicle . With effect from 15.2.2010, therefore, entry 35 would read as under : Machinery including parts and accessories thereof used in the execution of works contract but excluding the machinery in form of a motor vehicle or attached or mounted to a motor vehicle 6. Thus after 15.2.2010 amendment, the legislature has now provided for a specific exclusion of a motor vehicle or attached to or mounted to a motor vehicle from the expression 'machinery'. In other words, therefore, a machinery which is in the nature of a motor vehicle or attached or mounted to a motor vehicle which was hitherto included in entry no.35, by virtu .....

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