TMI Blog2016 (7) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ANT : MR PRANAV TRIVEDI, AGP FOR THE OPPONENT : MR RV DESAI, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Government has filed this appeal against the judgement of Value Added Tax Tribunal. Following substantial questions have been framed at the time of admission of appeal : (A) Whether in the facts and in the circumstances of the case, the Tribunal has rightly held that, loader will fall under expression machinery, thereby falling within Entry No.35 of notification, dealing with machinery used in excavation in works contract and not under Entry No.87 of ScheduleII of the Gujarat Value Added Tax Act, 2003? (B) Whether the Tribunal has erred in not giving an independent finding that, all the it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal'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 consequence. Entry 35, we may recall, pertains to machinery including parts and accessories thereof used in the execution of the works contract. Admittedly, there is no separate entry for motor vehicles. Therefore, when a question arises where certain equipment is a machinery which is used in the execution of the works contract, the fact that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. 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 works contract even if it happened to be a vehicle would fall within entry 35. In this context, we may refer to the decision of the Supreme Court in the case of Gem Granites (supra) in which it was held and observed as under: 13. The introduction of the phrase other than in Clause(b) of subsection 2 of Section 80HHC in 1991 in our opinion, indicates the carving out of a specific class from the generic class of minerals and ores. This means that were it not for the exception, the specific processed minerals and ores would have been covered by the words minerals and ores, it also i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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