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STATE OF GUJARAT Versus STANDARD RADIATORS PVT LTD

Rate of tax - Classification - nature of machinery used for works contract - motor vehicle - oil cooler for backho loader / oil cooler for wheel loader / oil cooler for soil compactors - scope of entry No.35 of notification issued under section 5(2) of the Gujarat Value Added Tax Act? - various types of oil coolers were principally used in chain mounted equipments and other equipments used for cutting of iron and steel sheets etc. - Held that:- Quite apart from the plain interpretative proce .....

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ntry no.35, would automatically stand ejected out of such entry. Post 15.2.2010 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 TH .....

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t 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 entry No.35 of notification issued under section 5(2) of the Gujarat Value Added Tax Act? 2. Briefly stated the facts are that the respondent assessee had filed an application before the competent authority seeking opinion in terms of section 80 of the Gujarat Va .....

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mounted equipments and other equipments used for cutting of iron and steel sheets etc. However, the request of assessee was rejected when such oil coolers were being used in loaders which were tyre mounted vehicles required to be registered under the Motor Vehicles Act. In the opinion of the authority, since these were motor vehicles, they would not be included within the expression 'machinery' used for execution of works contract. 3. Against such order of the competent authority, the re .....

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learned counsel for the parties and having perused documents on record, we may notice that term sale has been defined under section 2(23) of the VAT Act which provides that sale means the sale of goods made within the State for cash or deferred payment or other valuable consideration and includes inter alia in clause (b) transfer of property in goods whether as goods or in some other form involved in execution of a works contract. Term works contract is explained in explanation clause (ii) whic .....

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t 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 .....

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al objects or articles; these objects or articles should interact in unison upon or with each other; this interaction is promoted by application of force which may be manual or motive power; and the movement should be with a view to do some specific activity or to obtain specific or definite result. These observations were based on the Privy Council judgment of Cossipore and Chitpore Municipality reported in AIR 1922 P.C. 27. Likewise, in the case of Vicas Tractors (supra), Division Bench of thi .....

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and considering the nature of construction equipments, we have no hesitation in upholding the Tribunal's view that these were machineries used for the purpose of works contract. 11. The main question therefore, arises is whether these machines being motor vehicles, would be covered by residuary entry. The fact that these vehicles are motor vehicles and were registered or compulsorily registerable under the Motor Vehicles Act is not dispute. However, in our opinion, this would be of no conse .....

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on of works contract, the fact that it also happens to be a motor vehicle, would not change this fundamental feature which would be sufficient to bring the equipment within the purview of entry 35. In absence of 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 cas .....

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hat 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 prior to 15.2.2010, any construction equipment which was a machinery used for execution of wo .....

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minerals and ores would have been covered by the words minerals and ores, it also indicates that only the minerals and ores subjected to the process of cutting and polishing would be entitled to the benefit of Section 80HHC meaning thereby that all other species of processed minerals and ores would continue to be covered by the general exclusion applicable to the generic class. The 1991 Amendment to Section 80HHC thus conclusively demonstrates that the words minerals and ores msut be construed .....

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we were to hold that the word minerals in Subsection 2(b) never included processed minerals then the 1991 Amendment excepting processed minerals from the exclusionary effect of the sub section would be rendered meaningless and an exercise in futility. 14. Every statute if prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation [See: Keshavan v. State of Bombay MANU/SC/0020/1951: 1951 Cri.LJ 680]. There is nothing in the wording of the 1991 .....

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sed 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 wor .....

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