T.P.S. Chawla, J.
(1) This petition under Article 226 of the Constitution raises a question regarding the customs duty payable on a tractor loader. I will explain what a tractor loader is, a little later. The question has a number of facets, and arises in this way.
(2) In or about 1960, the Delhi Cloth and General Mills Company Limited decided to set up a Rayon Tyre Cord Plant at Kota. For procuring the requisite machinery and its component parts the Mills entered into an agreement dated 25th July 1961 with Chemtex Inc., an American company. An import license dated 6th February 1962 was obtained for the 'plant and machinery and materials' to be imported. A complete list of the goods allowed to be imported was annexed to the license. Towards the end of 1963, the license was registered with the Customs Authorities at Bombay. Since it was impossible to transpo all the machinery together, it was sent in a number of consignments. In respect of each consignment, as and when it arrived, the Customs Authorities made a provisional assessment of customs duty, the final assessment to be made later.
(3) In January 1964 a consignment arrived comprising a tractor loader. There is on record the manufacturer's specifications of this machine with illustrations. From the illustrations it appears that a tractor loader is merely a tractor with a shovel-shaped attachment in the front. This attachment is called a 'bucket'. Because the bucket is attached to the front end, the tractor loader is described as front- ended. The bucket can be raised to a certain height, and in that position made to tip-back so as to discharge its contents. Obviously, the purpose of the mechanism is to lift material capable of being carried in the bucket from ground level to the height it is able to reach. In all other respects the machine is like any other tractor. It has wheels with pneumatic tyres, a steering wheel and a driver's seat.
(4) The Customs Authorities took the view that for purposes of customs duty the tractor loader fell within item 75 of the First Schedule to the Tariff Act 1934, and made a provisional assessment accordingly. That item reads: 'Conveyances not otherwise specified and component parts and accessories thereof other than parts and accessories of motor vehicles, batteries and articles specified in Item No. 75 (12A), also motor vans and motor lorries imported completely assembled.'
(5) After paying the duty so assessed, the Mills moved an application dated 28th March 1964 before the Assistant Collector of Customs, Bombay, seeking a refund. They maintained that item 75 did not apply, and that the appropriate item was 72(b). The relevant part of item 72 reads as follows : 'Machinery, namely, such of the following articles as are not otherwise specified:
(A)...................................(b) machines and sets of machines to be worked by electric, steam, water, fire or other power, not being manual or animal labour, or which before being brought into use require to be fixed with reference to other moving parts;' Alternatively, the Mills contended, that even supposing the tractor loader did not of its own come within item 72(b), it must be deemed to be covered by that item by virtue of a Government of India Notification No. 82-Customs of 6th August 1960.
(6) By an order of 11th June 1964 the Assistant Collector of Customs rejected the application moved by the Mills. Their appeal was dismissed by the Appellate Collector of Customs, Bombay, by an order dated 1st September 1964. And, a petition for revision was dismissed by the Central Government by an order of 19th June 1967. Consequently, in January 1968, the Mills filed this petition to have the order of the Central Government quashed, and to obtain an order of mandamus directing the Union of India to refund the amount of duty alleged to have overcharged.
(7) The main question in the case, on which most of the argument was focussed, is whether a tractor loader is a 'conveyance' within the meaning of that word as used in item 75. Literally the word means 'something which convey': for example, a carriage or other vehicle. To 'convey' means to transport or carry from one place to another. These are the definitions to be found in the dictionaries. They show that the basic notion is that of movement. The movement may be in any direction and in any plane.
(8) But, in item 75 is the word 'conveyance' used in this vide sense or in some narrower one? The First Schedule to the Tariff Act is divided into subject-wise sections under which various items are grouped. Item 75 is in section Xvii which is entitled 'Transport Material'. So, it is reasonable to think that the articles mentioned in the items coming under this section are connected with 'transport'. This is confirmed on a cursory examination of the other items in this section. They are too many to be referred to individually, but I would draw particular attention to items 74(1), 75(1), 75(2), 75(3), 75(4), 75(5), 76 and 76(1). It is not necessary to set out these items in full, and it is sufficient to notice that they deal with 'tramcars', 'motor cars', 'motor cycles', 'motor omnibuses', 'carriages and carts', 'cycles', 'aeroplanes' and 'ships' respectively. The remaining items in this section deal with other articles necessary to be employed for transport by these diverse means.
(9) A little reflection will disclose that all these forms of transport 'convey' along the horizontal plane. Even though an aeroplane soars into the air, its effective line of 'transport' is, and is intended to be, : from one point to another on the surface of the earth. Item 75 purports to be the residuary item in the section for it speaks of 'Conveyances not otherwise specified . . . .'. It Would surely be legitimate to infer from the surroundings in which this item appears that the word 'Conveyances' is used to denote such devices as 'transport' in the same sense. As a corollary it would follow that that which 'conveys' or 'transports' in a vertical plane is not within the purview of this item. thereforee, a
(10) However, it would seldom be the case at a machine intended to lift or load would be entirely stationery in the horizontal plane. That could only be if the point to which the goods were to be lifted happened to be perpendicularly above the point from which they were lifted, and this position remained constant. In the vast majority of situations that would not be so. Reaching an article to some higher point at which it is required for some purpose does normally also necessitate horizontal displacement. This tractor loader affords a good example. Its function is to convey 45 tonnes of coal per hour from the yard in the factory to the reclaiming hopper, which is a receptacle used for feeding coal to the boiler furnaces. The coal passes through the hopper into a crusher where it is crushed. The crushed coal is then carried on an inclined belt-conveyor into coal bunkers placed at a height from where it is gravity-fed into the boilers. It will be observed that the tractor loader performs three operations : it lifts the coal from the coal heap in the yard, carries it to the hopper, and then raises and drops it into the hopper. The movement of the coal is both in the horizontal and vertical planes. Since some horizontal movement is involved, is the tractor loader to be classed as a 'conveyance' in the sense of item 75
(11) This problem will arise whenever the movement is mixed, by which I mean in two planes. How is one to decide whether a machine operating in this way is a 'conveyance' or not I think the answer is that one must ascertain its dominant or primary purpose. Its design and function will always provide the clue. If the purpose of the machine is to lift or load, it is not a 'conveyance'. If the purpose is to transport, it is.
(12) From the Indian Customs Tariff Guide (13th edition) it appears that this is also the view of the Central Board of Excise and Customs. On page 427 of the Guide is recorded the advice given by the Board in Tariff Ruling 9 of 1967 on two questions posed for consideration by it. The second question was : 'Whether earth shifting machinery and allied equipment, such as loaders, were classifiable as 'conveyance' under item 75 I.C.T. or as 'machinery' under item 72 I.C.T. Also, what considerations should weigh in deciding whether a particular equipment was assessable under item 72 I.C.T. or 75 I.C.T., ''as the case might be?' On this question the Board opined : 'With regard to the second issue, both the D.G.T.D. and the Ministry of Law have pointed out that in deciding whether a specific equipment would be classifiable under item 72 I.C.T. or 75 I.C.T., particular attention should be paid to the design and function of the equipment. In cases where the primary function is that the machinery such as (sic) load- ing, excavating etc., any small or incidental movement of equipment with load, should be ignored and the item assessed as 'machinery'. Where however, the primary function is that of transportation of (sic) conveyance, the item should be assessed as a 'conveyance' under item 75 I.C.T. Incidentally it is also observed that excavating, levelling, boring and extracting machinery like shovels, coal-cutters, excavators, levellers and bull dozers are specified in Brussels Tariff Nomenclature under the chapter covering 'boilers, machinery and mechanical appliances'. Further, equipment designed for handling material such as cranes and loaders have been separately, classified and not included in the chapter relating to 'vehicles'. On these consideration (sic), excavators, scrapers, shovels, draglines and heavy duty loaders, etc. which primarily function as machinery, would be correctly assessable under item 72 I.C.T. On the other hand, equipment like dumpors, pay-loaders, coal-hullers etc. which primarily serve as conveyances for carrying loads from one place to another., would be assessable under item 75 I.C.T.
(13) A further advice on this ruling was given by the Board in 1968. This advice, at page 429 of the Guide, states : 'The principle laid down in Tariff Ruling No. 9 of 1967 (Board's No. 25/33/66-Cus. (T.U.) dated 29th May, 1967) was. that regardless of the name by which a particular equipment is called, the 'equipment which is essentially a loader i.e. whose primary function is of loading and unloading and not transportation should be assessed as machinery, whereas equipment which is essentially a transport vehicle should be assessed as conveyance. In fact the idea is that mechanically propelled works trucks of the types used in factories or warehouses for short distance transport or handling of goods classified under item 87.07 of the B.T.N. should (not) be assessed as conveyances. Accordingly the Board considers that all equipments which are essentially in the nature of .loaders, which have been classified in the B.T.N. under item 84.22 would, irrespective of their capacity, be assessable as machinery under item 72(b) I.C.T.' I have added the word 'not' in the penultimate sentence because the drift shows there is a printing error and that word is required.
(14) The views of the Board, and my own, rest not only on commonsense but also common parlance. In ordinary usage the words 'conveyance' and 'transport' are normally used with reference to a journey in the horizontal direction. No one would describe a crane, or a bull dozer or a loader as a 'conveyance', or, indeed, even employ them as a regular means of 'transport'. Granting that in their broadest sense these words can comprehend vertical movement also, that is not how they are generally used. It is an accepted principle of interpretation that when the legislature uses words intended to be understood by businessmen, as for instance in a taxing statute, they are presumed to have been used in their everyday sense, and the court should not search for any technical or remote meaning.
(15) Thus, from all avenues I reach the conclusion that the word 'Conveyance' in item 75 has the restricted meaning of that which 'transports'. In this sense a tractor loader is no more a 'conveyance' than a movable crane. The primary purpose of both is to lift or load and not to 'transport'. This is abundantly evident from their function and design.
(16) I do not think that for the present question it is relevant to inquire whether a tractor loader would be a 'motor vehicle' within the meaning of that term in the Motor Vehicles Act 1939. It may be (though I must not be taken as deciding this) that a tractor loader needs to be registered under that Act, as was held in respect of dumpers in M/s. Hindustan Steel Works Construction Ltd. vs . The State of Bihar and others, : AIR1974Pat151 . That does not help to decide whether it is a 'conveyance' within the concept of item 75-
(17) In view of the conclusion which I have stated it is unnecessary to decide whether the tractor loader is a 'truck' covered by the Government of India Notification No. 167-Customs of 15th October 1955. That notification merely reduces the rate of duty chargeable under item 75 on certain kinds of trucks. Besides, counsel for the Mills said he did not wish to rely on it because he found that even the reduced rate of duty was more than that admitted to be payable. For the same reason he abandoned his argument based on Notification No. 26-Customs dated 12th March, 1960. Neither of these notifications is mentioned in the petition, nor was any claim founded thereon made before the customs authorities.
(18) In the course of argument, counsel for the Union did suggest that the tractor loader might be regarded as a 'motor omnibus' within item 75(3). This has never been the case of the Union. But, in any event, the suggestion is wholly untenable. 'Omnibus' is the former name for a bus. The Concise Oxford Dictionary defines it as a large wheeled public vehicle plying on fixed route and taking up and setting down passengers at fixed, or at any, points in this'. A tractor loader does not conform to this notion in any conceivable way.
(19) Though even according to the ruling and the advice of the Central Board of Excise & Customs, which I have quoted above, 'all equipments which are essentially in the nature of loaders......... would............ .. be assessable as machinery under item 72(b) I.C.T.', counsel for the Union did not accept this. He said that the tractor loader was not a 'machine', and further, supposing it was, item 72(b) spoke of 'machines and set of machines' in the plural and hence could not be applied to one machine such as the tractor loader. So, he argued, that if the tractor loader was not a 'conveyance' attracting item 75, it could only be assessed under item 87 which applies to 'All other articles not otherwise specified' and is contained in section Xx which is entitled likewise.
(20) As to the argument about words in the plural being used in item 72(b), I would point out, that, if sound, it would put item 75 also out of the way, for that item, too, uses the plural 'Conveyances'. Yet that is the item under which the assessment was sought to be supported. But, I think the argument is plainly unsound. The plural always includes the singular, because more than one includes one. And, section 13(2) of the General Clauses Act 1897 expressly provides that 'words in the singular shall include the plural and vice versa'.
(21) There can be no doubt that a tractor loader is a 'machine'. Any device which transforms or transfers energy is called a 'machine'. A tractor loader converts Chemical energy derived from petrol or diesel oil into mechanical energy expended in lifting and carrying loads. Thus it falls squarely within item 72(b), which is residuary for 'machines' and there is no need or justification for resorting to the ultimate residuary item 87.
(22) Lastly, there is the alternative point which turns on the construction of Government of India Notification No. 82-Customs dated 6th August 1960. This notification provides that
'............COMPONENTparts of any machinery proved to the satisfaction of the Customs Collector to be required for the purpose of the initial setting up of that machinery or for its assembly or manufacture, are exempt from the payment of so much of the Customs duty livable thereon as is in excess of the rate applicable under the Indian Tariff Act, 1934 (32 of 1934), to the said machinery when imported complete subject to the following conditions, namely': I omit the two conditions which follow, because admittedly they were both fulfillled by the Mills. The questions argued on the notification were whether the tractor loader could be regarded as the 'component part' of any machinery, and whether it was 'required for the purpose of the initial setting up of that machinery'.
(23) 'COMPONENT', again according to the Concise Oxford Dictionary, denotes that which contributes 'to the composition of a whole'. The 'whole' is the Rayon Tyre Cord Plant. Inasmuch as the tractor loader is part of the machinery constituting that plant it can legitimately be described as a 'component part'. A certificate to that effect was granted even by the Directorate General of Technical Department, as it was required for complying with one of the conditions of the notification. I take that as technical support for my view.
(24) At first I was extremely doubtful whether the tractor loader could be said 'to be required for the purpose of the initial setting up' of the plant. This was because I was taking the phrase 'setting up' to mean to 'place in position', and it seemed clear that the tractor loader was not required for erecting the machinery. But after reading the judgment of the Supreme Court in Commissioner of Wealth- Tax, Madras vs . Ramaraju Surgical Cotton Mills Ltd. : 63ITR478(SC) , I realised that the phrase had been used in the different sense of 'start functioning'. There it was said that : 'A unit cannot be said io have been set up unless it is ready to discharge the function for which it is being set up. It is only when the unit has been put into such shape that it can start functioning as a business or manufacturing organisation that it can be said that the unit has been set up.' If that is the test, as I now think it is, then there is no doubt that the tractor loader was required for the initial 'setting up' contemplated by the notification. Without it the boilers could not be charged and the plant could not function.
(25) The consequence of my holding that the tractor loader is covered by the notification is that, even if on its own it does not fall within item 72(b) (though I have held that it does), it must be treated as coming under that item by force of the notification. So either way, item 72(b) is the appropriate one for making the assessment.
(26) A faint attempt was made to persuade me that I should not interfere with the orders of the tribunals below as they had decided what was essentially a question of fact. In that connection I was referred to the Commissioner of Income Tax, Assam etc. vs. Himangshu Sekhar Chakravarty, etc., 1975 S.C. 15. That case holds that the High Court and Supreme Court have no jurisdiction, in a reference under section 66 of the Income Tax Act, 1922, to review a finding on a question of fact which is supported by the evidence on record. Apart from the fact that that case is concerned with a wholly different jurisdiction and is totally off the point, I think it is too plain that the construction of various items in the First Schedule to the Tariff Act and the words of the notification gives rise to questions of law. In my opinion those questions of law were wrongly decided by the customs authorities and the Central Government, and the errors are patent from the record-
(27) For these reasons the petition is allowed with costs. The order dated 19th June 1967 made by the Central Government is quashed, and the Union is ordered to refund to the Mills the amount of duty paid for tractor loader which is in excess of that chargeable under Item 72(b). Counsel's fee Rs. 250.00 .