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Hindustan Motors Limited Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Reported in1980CENCUS156D; 1980(6)ELT423(Del)
ActsCentral Excise Act, 1944 - Sections 13
AppellantHindustan Motors Limited
RespondentUnion of India and Others
Cases ReferredDunlop India Ltd. v. Union of India
.....promises excellent performance if this counsel is observed. i was referred to teh standards adn specifications of teh indian road congres recommended for motor vehicles which use roads......stretches of road in the immediate vicinity of the sites on which tehy are used rather than as road vehicles capable of being used in transit to carry passengers or goods. 10. the expression `motor vehicle' is the genus. it means a mechanically propelled vehicle. within this genus a motor vehicle means one thing and a motor car means another. scooters, auto- rickshaws, motor-cycles, motor cars, racers are all species of the general rubric 'motor vehicles'. a tractor is also a motor vehicle as tis clear from clause (3a). then comes the residuary clause 4 which says 'motor vehicles, not otherwise specified'. in this clause rear dumpers fall. the explanationn to item 34 shows that these dumpers come within the width of the clause. the dumpers are motor vehicles mlounted, fitted or tied.....

1. This writ petition raises the question as to whether dumpers are `motor vehicles' within the meaning of Item 34 of the First Schedule of the Central Excises and Salt Act, 1944 (the Act) and are accordingly liable to excise duty.

2. Hindustan Motors Ltd., the petitioner, manufacture and sell what are called 'Rear Dumpers'. This dumpers is an earthmoving equipment and is used to hal large quantities of soil, rock or mineral ores within the area of a civil construction project or a mining project. The normal speed of the dumpers is 18 K. Miles per hour. The dumpers is a very heavy equipment with a tare weight of approximately 19.5 M. tonnes and can carry loads up to 25 tonnes. It is designed in operate on sought terrain. For this purpose it is sturdily built to withstand any rough handling and has a very high ground clearance in order to operate on uneven surface. Its selling price in 1975, when the writ was filed, was approximately Rs. 9 lakhs exclusive of all taxes.

3. Now exercise authorities say that these Rear Dumpers manufactured by the Hindustan Motors Limited are subject to duty under Item 34. The authorities contend that the petitioners are liable to ay duty of approximately Rs. 1.10 lakhs for eac dumper they manufacture. The petitioner denies this cliam. Hence the writ petition.

4. The controversy centres rought Item 34, that item reads :-

'34. MOtor VEHICLES :`Motor vehicles' means allmechanically propelledvehicles adapted for use uponroads, and includes a chassisand a trailer but does notinclude a vehicle runningupon fixed rails.(1) Auto-Cycles, motorcycles, One hundred and Seventy fiveScooters, auto-rickshaws and rupees each or seven and aany other three wheeled motor half per cent ad valoremvehicles. whichever is higher.(2) Motor vehicles of not more One thousand rupees each orthan 16 HP by Royal ten per cent ad valorem which-Automobile Club (R.C.A.) ever is higher.rating.(3) Motor vehicles of more Three thousand Rupees each orthan 16 HP by Royal fifteen per cent ad valorem'Automobile (RAC) RATING, whichever is higher.constructed or adopted tocarry not more than ninepersons.(3a) Tractors, including Ten per cent ad valorem.agricultural tractors.(4) Motor Vehicles, not other- Two thousand five hundredwise specified. rupees each or twelve and halfper cent ad valorem whicheveris higher.Explanation. - For the purpose of this Item, where a motor vehicle is mounted, fitted or fixed with any weight-lifting, earthmoving and similar specialised material handling equipment, then such equipment other than the chassis, shall not be taken into account.'

5. The real question here is whether the vehicle concerned, which is known as a dumpers, is a 'motor vehicle' within the meaning of entry 34. There is no dispute that Rear Dumpers are 'mechanically propelled vehicles' within the meaning of the opening words of item 34. Whether 'they are adapted for use upon roads' is the question for decision. The petitioner's case is that these dumpers are not adapted for use upon roads as they are used only in project areas where haulage of earth for short distance within the project area is necessary. It is said that these dumpers are neither suitable nor fit for use upon roads. The case of excise authorities, on the other hand, is that they are 'adapted for use upon roads' and thereforee the petitioner must pay duty. This is the view the authorities under the Act took.

6. In the first instance the matter was examined by the Superintendent, Central Excsie. By order dated January 5, 1972, he held that dumpers are primarily desiged for transporting lands and are accordingly adapted for use on roads. On appeal the appellate collector by order dated July 4, 1972 confirmed his view. The Central Govt. in revision confirmed the order of the appellate authority on 7th August, 1975. The present writ petition was filed on 22nd September, 1975 questioning the correctness of the view taken by the excise authorities.

The central question that arises for decision is : Are these Rear Dumpers 'adapted for use upon roads?' In this expression the words 'adapt' and 'road' are the key words. The words 'adapt' we know means 'apt' of `fit'. Used in an adjectival sEnse it means `suitable' or `apt for use'. As to the meaning of the word `road' it means a 'public road' or 'a highway' to which the publ;ic have an access. Every member of the public has a right to pass and repass on the road. That the word `road' means a 'publ;ic road' is established by the Supreme Court decision in Balani Ores v. State of Orissa - : [1974]94ITR321(SC) .

7. In my opinion the question must be answered in favor of the excise authorities. Rear Dumpers are 'motor vehicles' within the meaning of item 34. It is not denied that these vehicles are on pneumatic wheels and can be moved about form place to place with mechanicla power. The word `vehicle' itself connotes that it sis a contrivance which moves. For purposes of haulage which admittedly is the primary function of these dumpers, this four- wheeled mechanically propelled vehicle fitted with pneumatic tyres is fit for use on roads. It means for use for ordinary rotate purposes. These vehicles do not run upon fixed raisl. That is an excepted item. Not do they fly in the ari. So heavy are they. They ply on the road. Plying of the vehicle on the road would be one of the normal users of the vehicles. It is true that these dumpers are really a bit of plant on wheels. But one of their users is a road user.

8. The real question is : Is some general use on the roads contemplated as one of the users In my opinions it is undoubtedly capable of being used on the road. But this is not their sole use. These are used in rough terrain and for purpose of haulage or ores etc. within a short distance from the site of the project. For example, the dumpers carry ores from the place of excavation to the railway wagon within the mining area, if it is a mining project. Admittedly, these vehicles are used at the place or mining operations. These machines which are the subject matter of this writ petition are excellent for working in the mining areas.

9. In relation to speed if he said that this slow speed of 18 K. Miles per hour indicates that they are not suitable to be driven along roads in transit or to carry materials from one site to another. But his is not conclusive. It is true that these dumpers aree in reality item of plant which occasionally are driven very slowly along short stretches of road in the immediate vicinity of the sites on which tehy are used rather than as road vehicles capable of being used in transit to carry passengers or goods.

10. The expression `motor vehicle' is the genus. It means a mechanically propelled vehicle. Within this genus a motor vehicle means one thing and a motor car means another. Scooters, auto- rickshaws, motor-cycles, motor cars, racers are all species of the general rubric 'motor vehicles'. A tractor is also a motor vehicle as tis clear from clause (3a). Then comes the residuary clause 4 which says 'Motor Vehicles, not otherwise specified'. In this clause Rear Dumpers fall. The Explanationn to item 34 shows that these dumpers come within the width of the clause. The dumpers are motor vehicles mlounted, fitted or tied with earthmoving equipment. The Explanationn says : 'Such equipment other than the chassis shall not be taken into account.' The mere fact that a motor vehicle is fitted with a specialised material handling equipment does not take these dumpers out of the category of `motor vehicles'. On this we have the evidence of the manufacturer itself. In their `Maintenance Manual' these Rear Dumpers are described as an earthmoving equipment. In s. 13 dealing with at page 1 of the Manual it has been said :

'Off-the-highway tires are rugged tires designed to operate under conditions that would make short work of highway type tires. Moreover, they usually carry greater loads than those carried by highway-type tires. However, such loands are only permissible because of the slower speeds at which off-the-highway tires operate. If these tires were operated at speeds greater than their maximum rated speed, the increased rate of sidewall flexing would general te excessive heat within the tire. Indeed, if sufficient rotational speed of these tires were attained, their temperature would reach, or even exceed, their vulcanizing termperature. If this point is reached the tire will, of course, fail.'

At page 8 of section 13 the manufacturer gives this advice :

'Maintain good haul roads'

Because haul roads are considered as temporary roads, they are frequently neglected. The better the haul road, the longer the tire and vehicle life of off-the-highway equipment. Although it takes times and effort to maintain good haul roads, the trouble caused by tire and vehicle breakdowns caused by poor haul roads is many times greater.'

The manufacturer'own description on shows that these dumpers are designed for use on roads, of course at 'slower speeds' because they have to carry 'greater loads'. If these tyres are operated at a speed greater than the heat and if the temperature exceeds their vulcanizing temperature the tyre with of course, burst. The manufacturer thereforee advises : 'maintain good haul roads.' 'The better the haul roads the longer the tyre and the vehicle life off-the-highway equipment.' Because haul roads are rough roads they are frequently neglected. thereforee, the manufacturer lays emphasis on the maintenance of good haul roads.

The sum total of this description is that the Rear Dumpers must be arisen at a slow speed on good haul roads. The manufacturer promises excellent performance if this counsel is observed. This shows that Rear Dumpers are 'motor vehicles'. One of their users is a read user.

11. In Balani Ores v. State of Orissa, : [1975]2SCR138 (see paras. 24, 25 and 26) this precise question seems to have arise. It was argued that these vehciles, dumpers, rockers and tractors, are heavy vehicles and are unfit for plying on the road. The Supreme Court rejected this contention. They said :

'But that is not to say that all vehicles which exceed a particular weight are not adapted for use upon roads and are, thereforee, not motor vehicles.' (p. 26).

Then it was argued that the proper function of the dumpers is use at the site. Repelling the contention the court said :

'In respect of all these three types of vehicles (dumpers, rockers and tractors) it cannot be said that they are not 'adapted for sue upon roads. That they are not so used or are confined for use to only places other than roads or public places is a different matter....' (p. 26).

The Court referred to the manufacturer description of the vehicle and held that they were 'motor vehicles' and adapted for use upon roads'. Similarly I have also relied on the manufacturer's Manual and have come to the conclusion that the dumpers which are the subject of this petition possess the attribute of being suitable or fit for use upon roads i.e. public roads and are a 'motor vehicle'. The present case in my view is indistinguishable from Bolani Ores case.

12. Counsel for the petitioner contends that this is not the popular or the commercial sense in which dumpers are understood in the commercial world. I was referred to Dunlop India Ltd. v. Union of India - AIR 1977 SC 597 Counsel said that the dumpers of their manufacture and make the particularly suitable for the function of hauling and are unsuitable and uncommercial for the roads on which they would be only a source of danger or damage. I was referred to teh standards adn specifications of teh Indian Road Congres recommended for motor vehicles which use roads. Counsel argued that these dumpers are generally called 'off-the- highway' dumpers and are used in mining and protect areas and are never used on the raods. It may be that they are known as 'off-the-highway' dumpers in common parlance. But they do not case to be dumpers. The epithet 'off-the-highway' used in relation to them will not take the vehicle out of the category of 'motor vehicle'.

13. Counsel then said that the dominant or primarily purpose 'off- the- highway' dumper is that they are used for hauling large quantities of rocks or mineral ores over short distances and are totally unsuitable and unfit for use on roads. If the dumpers in loaded conditions are allowed to operate on roads they would dig or damage the roads, he said. He called my attention to the Indian Tariff Act where the custom authorities have classified dumpers as 'machinery and equipment'. Similar, he said is the classification made by Brussels Tariff Nomenclature (BTM) where dumpers are categorised as loading and unloading machinery. To this argument the short answer is that itt is the definition of 'motor vehicle' as given in item 34 which will govern us and not what has been siad in other enactments or literature. The object of the Central Excise Act is to raise revenue andd with this end in view the legislature has defined the term 'motor vehicle'. In the context of teh Act the expression 'motor vehicle' has to be understood. The context must govern the true meaning of the term 'motor vehicle'.

14. For the reasons the writ petition is dismissed with costs.

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