Judgment :- Narayana Kurup, J. Petitioners are conducting motor driving schools in various places under different names and styles. The schools are recognised by the Government of Kerala. 2. For the purpose of conducting the Schools, petitioners have obtained licences from the licensing authority under R.24(1), 24(4) and 25 of the Central Motor Vehicles Rules. For imparting instructions in driving, petitioners have purchased the vehicles. These vehicles originally belonged to various categories like goods carriage, stage carriage and contract carriage, etc. The said vehicles were subsequently converted as driving school vehicles by fitting duel control facilities etc. so as to suit them for the purpose of imparting driving instructions. The vehicles are duly covered by the permits and the registration numbers of the vehicles are included in the driving school licences granted to the petitioners under Rr.24(1), 24(4) and 25 of the Central Motor Vehicles Rules, 1989. 3. The definite case of the petitioners is that the vehicles used by them for imparting instructions as driving school bus is not at all meant or used for carrying passengers or goods. They are aggrieved by the endorsements made by the authorities under the Motor Vehicles Act saddling them with liability to pay quarterly tax at the rates specified under Entry 3 A of the Schedule to the Kerala Motor Vehicles Taxation Act, 1976, (Taxation act), 10% surcharge and 10% additional surcharge. According to the petitioners, the statutory authority has seriously erred in imposing the tax bringing their case under Entry 3 A of the Schedule to the Taxation Act and plus 10% surcharge and additional surcharge. 4. According to the State, the endorsement has been made on the basis of Entry 3 of the schedule to the Taxation Act read with charging 'S. 5 thereof. It is the contention of the State that as per Entry 3 of the schedule to the Taxation Act, the petitioners are liable to pay the tax at the enhanced rate. However, the petitioners have a definite case that they are not liable to pay the tax at the enhanced rate applying Entry 3 of the schedule to the Act as according to them, the vehicle is used exclusively for imparting instructions to the students and not for transporting goods or passengers in which case the State can levy tax only at the rate prescribed under Entry 7 of the schedule to the Taxation Act. 5. 5. But then, learned Government Pleader would contend that the petitioners are liable to pay tax at the rate mentioned under Entry 3 A introduced by the Kerala Finance Act, 1993 under which "private service vehicles are to be levied tax at the rate of Rs. 100/- for every seated passengers (other than driver)". Thereafter, by the Finance Act, 1994, "omnibus' for private use was also included in item 3A to the Schedule. 6. To recapitulate, the contention of the petitioners is that the vehicles exclusively used for imparting instructions in driving schools do not answer neither the description of "private service vehicles" nor 'omnibus for private use'. As already noted, the vehicles used for imparting instructions in driving schools originally belonged to various categories like goods vehicle etc. The said vehicles were subsequently converted by fitting duel control facilities etc. so as to suit those vehicles for the purpose of imparting driving instructions. The vehicles are duly included in the driving school licences granted to the petitioners under R.24(1), 24(4) and 25 of the Central Motor Vehicles Rules, 1989. Petitioners do not and cannot use those vehicles as passenger vehicles since the vehicles are not meant to carry passengers. Petitioners can carry only one or two students and an instructor and possibly a helper at a time. They do not require any further seats and at any rate they do not require more than six seats. By no stretch of imagination can it be said that the vehicles are constructed or adopted to carry more than six persons excluding driver, so as to bring the vehicle under the definition of omnibus' as defined in S.2(29) of the Motor Vehicles Act. Even as per the amended provision, vide Entry 3A of the schedule to the Taxation Act, the tax to be levied is not on the basis of the seating capacity but on the basis of 'number of seated passengers' which makes the position abundantly clear that the liability to pay tax is attracted only in the event of the petitioners using the vehicle as a passenger vehicle. Evidently, vehicles in question are not used as passenger vehicles. 7. Evidently, vehicles in question are not used as passenger vehicles. 7. In the light of the aforesaid discussion, I am of the opinion that the vehicles owned by the petitioners and which are adapted exclusively for imparting instructions in driving schools cannot be taxed at the enhanced rate provided in Entry 3A introduced by the Kerala Finance Act, 1993 and the vehicles are exigible to tax only by applying the rate prescribed in the residuary Entry 7 to the Taxation Act. The result therefore, is that the amendment has no application so far as the driving school vehicles are concerned. Though,the validity ofthe 1993 and 1994 amendments have been up held by the Division Bench those amendments do not make any change in the residuary Entry 7 of the Schedule to the Taxation Act. The decision reported in 1991 (1) KLT 779 (Sukumaran v. Transport Commissioner) held in unmistakable terms that goods vehicles with modification used for teaching driving in motor driving schools come under Entry 7 and not under Entry 3 to the Act and that position remains unaltered. In the result, I allow these original petitions quashing all the impugned endorsements with a declaration that the tax in respect of the petitioners' vehicles used for teaching driving in motor driving schools are liable to be levied tax only at the rate specified in Entry 7 of the schedule to the Taxation Act and not under Entry 3 or 3A thereof. However, I make it clear that the respondents are at liberty to proceed against the petitioners in the event of it being found that the vehicles are actually used for purposes other than imparting instructions in driving schools or for carrying passengers or goods. If any excess amount has been collected, the petitioners will be at liberty in approaching the authorities concerned with an application for refund in which event, I have no doubt, that the authorities will consider the same and pass appropriate orders. The Original Petitions are allowed as above.