TMI Blog1975 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the oil-engines sold by the respondents did not fall under any of the entries contained in the said Schedule C and the respondents were, therefore, liable to pay on the sales of these engines sales tax at the rate of 3 per cent as also general sales tax at the rate of 2 per cent under the residuary entry No. 22 in Schedule E to the said Act. The respondents thereupon preferred an appeal to the Assistant Commissioner of Sales Tax and having proved unsuccessful in this appeal approached the Tribunal in second appeal. The Tribunal accepted the contention of the respondents and allowed the appeal. It is from this judgment and order of the Tribunal that the present reference has been made and the question submitted to us for our determination is as follows : Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that during the period 1st April, 1963, to 31st March, 1964, the sales of oil-engines effected by the respondents to the agriculturists were sales of 'agricultural machinery' within the meaning of entry No. 12 of Schedule C to the Bombay Sales Tax Act, 1959 ? 3. From the date when the Bombay Sales Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ----------------------------------------------- 6. With effect from 15th March, 1960, entry No. 15 was renumbered as sub-entry No. (1) and the following sub-entry was introduced as sub-entry No. (2) by Government Notification in the Finance Department No. STA-1059 dated 14th March, 1960 : ------------------------------------------------------------------------ Entry Description of goods Rate of Rate of No. sales tax purchase tax ---------------------------------------------------------------------- 15(2) Electric motors and oil-engines Three naye Three naye other than those adapted for use paise in paise in of as component parts of motor rupee. rupee. vehicles specified in entry 58 in this schedule. ---------------------------------------------------------------------- 7. This entry was again amended by Maharashtra Act No. 21 of 1962 with effect from 15th July, 1962, and the amended entry read as follows : ------------------------------------------------------------------------ Entry Description of goods Rate of Rate of No. sales tax purchase tax ------------------------------------------------------------------------ 15. Machinery and the spare parts Three naye Thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a fact that the machinery conforms to the description of agricultural machinery. In other words, the dealer must establish that in the commercial world that particular type of machinery is understood as agricultural machinery. It has to be established that the particular type of machinery is generally and commonly used for the purpose of agriculture. Now, the facts found are not that tractors are generally or principally used for the purpose of agriculture, nor is there any finding that a tractor is understood in the commercial world as an agricultural machinery. On the other hand, the order of the Tribunal shows that a tractor is used where a large percentage of the available power is required as force rather than speed. The use to which the tractor is put is in pushing down trees, pushing large piles of dirt or rocks, or loading scrapers and operating up steep grades or against the high rolling resistance of soft roads. Tractor also is used for clearing and grubbing involving a complete disposal of all timber, roots, and brush from the vicinity of operations. It is also used for clearing small trees, for pulling or pushing loads, a power unit for winches and hoists and a movin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced by the respondents and their account books proved before the Tribunal that the oil-engines sold by the respondents were sold to agriculturists, very often against tagai loans given in pursuance of the said resolutions or against loans made by the co-operative land mortgage bank. The respondents also produced a number of letters written by the said bank to them. 12. Mr. Shah, the learned counsel for the applicant, however, sought to argue before us that there was no evidence before the Tribunal that these oil-engines were used for agricultural purposes. No such question was sought to be raised by the applicant in his application for reference nor is any such question referred to us for our determination, and it is not open to Mr. Shah to take up this point. None the less, we may mention that we have found that there was overwhelming and convincing evidence before the Tribunal to prove the fact that the oil-engines sold by the respondents during the assessment period were oil-engines designed for agricultural purposes and sold to agriculturists for such purposes and were, therefore, agricultural machinery. Mr. Shah referred us to the order passed by the Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der entry No. 15(2). As pointed out above, this amendment to the entry was made by a Government notification in the Finance Department. It is, however, pertinent to note that when the Maharashtra Amending Act 21 of 1962 came to be passed, the amendment made by the Government notification was deleted by the legislature and it, therefore, appears that the legislature did not accept that all oil-engines fell in a separate category or sales thereof should be subject to a higher tax. Further, the fact that oil-engines were made the subject-matter of a separate sub-entry for a particular period does not mean that oil-engines are not agricultural machinery or parts of such machinery. There is nothing to prevent the legislature from taxing certain types of agricultural machinery under one head and other types of agricultural machinery under a different head and merely because a particular type of agricultural machinery is made the subject-matter of a separate entry, it does not follow that oil-engines designed and used for agricultural purposes cease to be or are not agricultural machinery. 17. In the result, we answer the question submitted to us in the affirmative. 18. The applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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