JUDGMENT 1. This is a reference application under Section 256(2) of the Income-tax Act, 1961, at the instance of the Revenue for calling a reference from the Tribunal of the following questions of law : "(1) Whether on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in holding that the pay loader machine falls under Clause III (D)(8) of Appendix-I of the Income-tax Rules, 1962, and was, therefore, entitled to depreciation at the rate of 30 per cent. ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that pay loader, a movable machine is entitled to additional depreciation in terms of Section 32(1)(iia)? (3) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in holding that the pay loader machine falls under Clause III(D)(8) of Appendix-I of the Income-tax Rules and was, therefore, entitled to depreciation at the rate of 30 per cent.?" (sic) 2. The Tribunal has declined to make a reference by order dated December 29, 1987, on the ground that no question of law arises for being referred to this court for answer. 3. The respondent-assessee purchased a terex pay loader for a sum of Rs. 9,98,948 from Hindustan Motors, Madras. Depreciation was allowed on pay loaders for the assessment year 1980-81 at the rate of 30 per cent. The order granting depreciation was set aside by the Commissioner of Income-tax under Section 263 of the Income-tax Act, 1961, on October 11, 1984, directing the Income-tax Officer to grant depreciation on the pay loader at the rate of 10 per cent. instead of 30 per cent. This order was passed keeping in view the earlier order dated February 14, 1984, passed by the Commissioner of Income-tax under Section 263 of the Act of 1961 for the assessment year 1978-79. The respondent-assessee filed an appeal against the order of the Income-tax Officer before the Commissioner of Income-tax (Appeals) for the assessment year 1981-82. The Commissioner of Income-tax (Appeals) allowed the appeal and directed depreciation at the rate of 30 per cent. 4. The respondent-assessee filed an appeal against the order of the Income-tax Officer before the Commissioner of Income-tax (Appeals) for the assessment year 1981-82. The Commissioner of Income-tax (Appeals) allowed the appeal and directed depreciation at the rate of 30 per cent. 4. Against the order passed by the Commissioner of Income-tax (Appeals), the Revenue preferred an appeal and the assessee also, preferred an appeal for not giving it the benefit of depreciation under Section 32 of the Act on the trucks. All these three appeals were clubbed together by the Tribunal and were disposed of by a common order annexure "C" dated April 17, 1986. The Tribunal held that so far as the grant of depreciation on the terex pay loader is concerned, the Commissioner of Income-tax (Appeals) rightly granted depreciation at the rate of 30 per cent. and so far as the question of grant of depreciation on the trucks is concerned the Commissioner of Income-tax (?) referred the matter back to the Income-tax Officer for decision afresh. Learned counsel for the Revenue submitted that the view taken by the Tribunal for grant 'of 30 per cent. depreciation under Section 32 of the Income-tax Act is not correct. Learned counsel submitted that the pay loader though may be used for collecting coal from open mines and putting it in a dumper and the same pay loader may be used by the assessee for putting that coal from the dumper in the trolleys for the train does not form part of machine covered by Clause III(D)(8) of Appendix-I, and, therefore, they are not entitled to depreciation. We have perused the Appendix and considered the submissions made by learned counsel. 5. Clause III(D)(8) of the Appendix-I reads as under : "Mines and quarries -- Portable underground machinery and earth-moving machinery used in open cast mining (N.E.S.A.)." 6. In the present case, it appears that the pay loader has been used for taking the coal lying on the earth and putting it in the dumper. Therefore, this machine is used for collecting the coal lying on the earth and the same may also be used for taking that coal from the dumper to the railway trolley and this machine can certainly be classified as an earth-moving machinery. Therefore, this machine is used for collecting the coal lying on the earth and the same may also be used for taking that coal from the dumper to the railway trolley and this machine can certainly be classified as an earth-moving machinery. Therefore, it was in the category of Clause III(D)(8) of Appendix-I and, as such, the view taken by the Tribunal appears to be justified in the present case. 7. So far as the second question regarding the trucks is concerned, the Tribunal has held that this matter requires reconsideration whether the truck is entitled to depreciation at the rate of 40 per cent or 30 per cent. That matter has already been remanded by the Tribunal for redetermi-nation by the Income-tax Officer after considering the matter. Therefore, we need not dilate on this matter. So far as the first part with regard to depreciation at the rate of 30 per cent. or 10 per cent. is concerned, we are of the opinion that the view taken by the Tribunal that the terex pay loader will be treated as earth-moving machinery and it would fall in the category of Clause III(D)(8) of Appendix-I and would be entitled to depreciation at the rate of 30 per cent., appears to be correct and no legal question is involved. Therefore, we are not inclined to call for a reference from the Tribunal. Hence, the reference application is rejected.