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2009 DIGILAW 286 (GAU)

Ujjal Transport Agency v. State of Assam

2009-04-30

A.C.UPADHYAY, J.CHELAMESWAR

body2009
JUDGMENT J. Chelameswar, C.J. 1. These two writ petitions, filed by the same petitioners, are heard together as they raise common questions of law regarding the taxability of certain vehicles owned by the writ petitioners herein. 2. In WP(C) No. 7516/02 the petitioners entered into a contract with the North Eastern Coal Fields for excavation and transportation of overburden in certain coal mines located in the State of Assam. For the said purpose the petitioners deployed various earth moving machineries like dumpers, tippers etc. According to the petitioners the said dumpers are used for removal of overburden in the mines. According to the petitioners the said dumpers and tippers do not play on public roads at all and they ply only within the enclosed areas of the above mentioned coal fields. 3. Having acquired the said dumpers the petitioners applied for registration of the said vehicles before the concerned District Transport Officer. The District Transport Officer by his letter dated 25.7.2001 informed the petitioners that the said vehicles are liable to be taxed under the Assam Motor Vehicles Taxation Act, as amended by the Amendment Act of 1999. The petitioner by his letter dated 25.8.2001 informed the Commissioner of Transport that some of the earth moving vehicles specifically knows as 'Volvo dumpers' are not liable for taxation under the above mentioned Act as they do not ply on the public roads. The said objection was not accepted and the taxing authority demanded the payment of tax. 4. Coming to WP(C) No. 1946/03 the issue is identical but the facts are slightly different and pertain to a different period, the details of which may not be necessary for us to go into at this stage. 5. The petitioners herein have been carrying on continuous legal battle to resist the collection of tax on the dumpers used by the petitioners from time to time. In the year 1996 the petitioners approached this Court by way of Civil Rule No. 3653/96 raising substantially the same questions as the ones raised in the present writ petitions. It was argued in the said writ petition as follows: Mr. In the year 1996 the petitioners approached this Court by way of Civil Rule No. 3653/96 raising substantially the same questions as the ones raised in the present writ petitions. It was argued in the said writ petition as follows: Mr. Goswami, learned senior counsel argued that the dumpers in question are in use only in the Tirap mines which is a protected place in a specified area and not in use in any public place including any other mine or on any public road either for carrying goods or passengers. According to Mr. Goswami, the dumpers in question being of special type cannot be brought within the fold of the definitions "Motor Vehicle" or "Vehicle" as available in Section 2(18) and, as such, the question of registration or payment of tax does not arise. The said submission was rejected by a learned Judge of this Court. However, the learned Judge disposed of the writ petition holding as follows: 10. In the context of the Assam Motor Vehicles Taxation Act, 1936, as it was prior to amendment in 2002, it can be concluded that dumpers were not specifically subjected to registration and road tax. By the amendment made in 2002, the dumpers have been subjected to road tax. The amended provision provides that 1.5% of the cost of chassis/vehicle has to be paid as road tax in respect of dumpers and other vehicles of similar type. There is no dispute at the bar that the dumpers were not specifically covered by the provisions of the Act of 1936 prior to the amendment. The District Transport Officer, Tinsukia issued the direction for registration on payment of tax on 12.7.1996, long before the amendment. This alone shows that the Transport Officer acted beyond his jurisdiction in issuing the direction at that point of time. By the amendment of 2002, statutory obligation has been cast on the owners of dumpers to pay road tax at the rate of 1.5% of the cost of the chassis/vehicle. Every owner of dumpers shall, therefore, has to discharge his statutory obligation with regard to registration and payment of road tax. There is no escape from this liability. The Act received the assent of the governor on 1st of May, 2002 and on and from that day road tax as specified has to be paid. Every owner of dumpers shall, therefore, has to discharge his statutory obligation with regard to registration and payment of road tax. There is no escape from this liability. The Act received the assent of the governor on 1st of May, 2002 and on and from that day road tax as specified has to be paid. Substitution of the Schedule by the amending Act of 2002 is suggestive of the fact that there was no legislative intent to compel registration and levy tax on dumpers and vehicles of similar type prior to the amendment of 2002. 11. Consequent upon the above discussion, this petition is disposed of with the observation that the direction given by the District Transport Officer, Tinsukia for registration of dumpers on payment of taxes by the petitioners firm shall be effective from the 1st day of Mar, 2002. 6. The submission of the learned Counsel for the petitioners Mr. Goswami in the present batch of writ petitions is same as the one he made earlier in Civil Rule No. 3653/96 which is already noticed. In short the learned Counsel argued that to be exigible to tax under the Assam Motor Vehicle Taxation Act a vehicle must necessarily be a Motor Vehicle as defined under the Motor Vehicles Act. The learned Counsel for the petitioner laid emphasis on the clause occurring in the definition of the expression 'motor vehicle' under Section 2(28) of the Motor Vehicles Act, 1988 which reads: .... but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.... and urged that the vehicles in question are such vehicles that would fall under the above extracted excluded item and, therefore, not exigible to tax. but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.... and urged that the vehicles in question are such vehicles that would fall under the above extracted excluded item and, therefore, not exigible to tax. The learned Counsel also argued that the question is squarely covered by the decision of the Supreme Court in (1974) 2 SCC 777 Bolani Ores Ltd. v. State of Orisssa, as the test relevant for taxing a motor vehicle is whether such vehicle plies on public roads or not and the later judgments of the Supreme Court completely ignored this aspect and proceeded to determine the question of taxability on the construction of the language of the relevant taxing statutes thereby ignoring the constitutional limitation on the taxing power of the State under Entry 57 of List II and therefore both the decisions must be understood in the context of the limited issues argued and decided in those cases. The learned Counsel also argued that in view of Section 41(4)1 of the Motor Vehicles Act and in view of the notification issued by the Govt. of India in exercise of the power under Section 41(4) read with Rule 2(c) (a) vehicles such as the ones used by the petitioners (dumpers) are not motor vehicles within the meaning of Section 2(28) of the Motor Vehicles Act and, therefore, the demand of tax on such vehicles is illegal. The learned Counsel for the petitioner placed heavy reliance upon some observations made in (1997) 5 SCC 752 Good Year India Ltd. v. Union of India. It was observed at para 10 of the said judgment as follows: 10....Merely because the areas on which such heavy-movers traverse might sometimes include roads also is not enough to hold that they were "adapted for use upon roads". Such use of the heavy-movers on the road may only in ancillary or incidental to the main use of it... The learned Counsel, therefore argued that vehicles of the petitioners which are sought to be taxed are such vehicles which occasionally travel on the roads and that does not make them "motor vehicle" within the meaning of Section 2(28) of the Motor Vehicles Act, thereby making them exigible for taxation under the Assam Motor Vehicles Act. 7. The learned Counsel, therefore argued that vehicles of the petitioners which are sought to be taxed are such vehicles which occasionally travel on the roads and that does not make them "motor vehicle" within the meaning of Section 2(28) of the Motor Vehicles Act, thereby making them exigible for taxation under the Assam Motor Vehicles Act. 7. On the other hand the learned Counsel for the State relied upon a decision in (1980) 3 SCC 619 Travencore Tea Estate Co. Ltd. v. State of Kerala, and 1992 Supp (3) SCC 133 M/s. Central Coalfields Ltd. v. State of Orissa, to repeal the submissions made by the learned Counsel for the petitioners and pointed out that this Court earlier in Civil Rule No. 3653/96 in fact relied upon 1992 Supp (3) SCC 133, (supra) to repeal the submission of the petitioners on the earlier occasion and there is no reason for this Court to depart from the earlier decision as there is no change in the statutory law in the context of the present challenge. We must point out that in deciding Civil Rule No. 3653/96 the learned Judge recorded a finding that prior to the Assam Amendment Act of 2002 in Assam Motor Vehicles Taxation Act did not specifically prescribe for taxation of dumpers, but as a matter of fact even by the Amendment Act of 1999 it was so provided. 8. The Motor Vehicles Act, 1988 is referable to the legislative authority vested in the Parliament by virtue of Entry 35 of List III of the Seventh Schedule of the Constitution. Entry 35 reads as follows: 35. Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied. 9. On the other hand the authority for taxing the motor vehicles is assigned to the States by the Constitution under Article 246(3) read with Entry 57 of List II of the Seventh Schedule. Entry 57 reads as follows: 57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III. 10. The Assam Motor Vehicles Taxation Act, 1936 provides for levy and collection of taxes on motor vehicles. The said Act underwent some amendments from time to time, the details of the amendments will be discussed later. 10. The Assam Motor Vehicles Taxation Act, 1936 provides for levy and collection of taxes on motor vehicles. The said Act underwent some amendments from time to time, the details of the amendments will be discussed later. Obviously, the said enactment is an exiting law within the meaning of Article366 Clause (10) of the Constitution. Under Section 4 2 of the said enactment the owners of motor vehicles are prohibited from using any motor vehicle in the State of Assam unless a tax on that vehicle is paid. The section further stipulates that the tax shall be such as specified in the First Schedule to the Act and such tax is payable annually. The expression "motor vehicle" is defined under the said Act in Section 2(g) as follows: 2(g). "Motor Vehicle" shall have the same meaning as in the Motor Vehicles Act, 1939. It is obviously from the said definition that the expression "motor vehicle" occurring under the Assam Motor Vehicles Taxation Act shall have the same meaning as assigned to it under the Motor Vehicles Act, 1939. However, the Motor Vehicles Act, 1939 came to be repealed by the Motor Vehicles Act, 1988 made by the Parliament under Section 217. By virtue of the operation of Section 8 of the General Clauses Act, 1897 therefore, the definition of the expression "motor vehicle" as occurring in Section 2(28) of the Motor Vehicles Act, 1988 is to be the definition of the motor vehicle occurring under Section 4 of the Assam Motor Vehicles Taxation Act. 11. Under Section 2, Sub-section (28) of the Motor Vehicles Act, 1988 a Motor Vehicles is defined as follows: 2(28). "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty five cubic centimeters. From the definition it emerges that to constitute a motor vehicle within the meaning of the said Act (i) the vehicle must be mechanically propelled vehicle and (ii) it must be adapted for use upon roads irrespective of the fact whether the power of propulsion is transmitted to the vehicle from an external or internal source. The definition of "motor vehicle" under Section 2(28) of the Motor Vehicles Act is in two parts. While it defines "motor vehicles' 'as mechanically propelled vehicles adapted for use on roads the definition excludes vehicles running upon fixed rails or vehicles of special type adapted for use only in factory or any other enclosed premises which might otherwise satisfy the requirements of the definition of a "motor vehicle" by answering the description that they are the mechanically propelled vehicles. The question is as to what is meant by the expression "adapted for use on roads"? 12. Under the Motor Vehicles Act motor vehicles of two broad categories are dealt with. They are (i) vehicles 'used to carry passenger and (2) vehicles used to carry of goods. Under each of these categories there are various classes of vehicles recognised and their use is sought to be regulated by the Act. 13. Under Section 393 of the Act the driving of a motor vehicle in a place whether public or not is prohibited unless the vehicle is registered in accordance with the provisions of the Motor Vehicles Act. Such a prohibition is both against the owner of the vehicle as well as driver. While under Section 3 the driving of a motor vehicle by any person is prohibited unless such a person, holds an appropriate driving licence to drive such a vehicle. The other provisions of the Act are broadly provisions to give effect to the said two provisions. As was held in (1974) 2 SCC 777 (supra) the Motor Vehicles Act is essentially an enactment to regulate the use of motor vehicles in public places in the larger public interest of road safety. 14. Section 4 of the Assam Motor Vehicles Taxation Act, 1936 provides for the levy of tax, the relevant portion of which reads as follows: 4. Imposition of tax. 14. Section 4 of the Assam Motor Vehicles Taxation Act, 1936 provides for the levy of tax, the relevant portion of which reads as follows: 4. Imposition of tax. (1) Save as otherwise provided by this Act or by any rules made thereunder or by any other law for the time being in force no motor vehicle shall be used in the Assam State unless the owner thereof has paid in respect of it a tax at the appropriate rate specified in the First Schedule to this Act and, save as hereinafter specified, tax such shall thereafter be payable annually notwithstanding that the motor vehicle may from time to time cease to be used. The said Act underwent amendments from time to time. The Act earlier consisted two Schedules. By subsequent amendments to the Act it now contains only one Schedule. Correspondingly by the Assam Act of 27 of 1999 the expression "first" occurring in Section 4(1) was omitted and by the same Act the existing Schedulers I, III and IV were submitted by a single Schedule. Entry VII of the said Schedule read as follows: Any other transport vehicle not covered under any category above such as Dumper, Excavators, Camper Van, Trailers Cash Van, Mobile Canteen, Mobile workshops, Ambulance, Mobile Clinic, Forklift, Town-Truck, Rig etc. are taxable at 1-1/2% of the cost of the chassis of the vehicle. Once again the Assam Motor Vehicles Taxation Act came to be amended by Act 12 of 2002. It provided, inter alia, for substitution of the Schedule referred to earlier by a new Schedule. The entry VIII, which is relevant for the purpose of the present case, in the Schedule to the Assam Motor Vehicles Taxation Act, as it exists is as follows: Any other Transport vehicles not covered under only category above such as Dumper, Excavator, Camper Van, Trailer Cash Van, Mobile Canteen, Mobile workshop, Ambulance, Mobile Clinic, Fork-lift, Town-Truck, Rig etc. 15. We have noticed that the Act does not give any new definition of the expression "motor vehicle" but declares that the said expression shall have the same meaning as in the Motor Vehicles Act, 1939. We have already noticed the definition of the expression "motor vehicle" occurring under Section 2(28) of the Motor Vehicles Act. 16. The legislative filed of taxation indicated under entry 57 of List II of the Seventh Schedule is essentially taxes on vehicles. We have already noticed the definition of the expression "motor vehicle" occurring under Section 2(28) of the Motor Vehicles Act. 16. The legislative filed of taxation indicated under entry 57 of List II of the Seventh Schedule is essentially taxes on vehicles. The vehicles may be mechanically propelled or not. Even vehicles drawn by animals or human beings may fall within the sweep of the legislative authority for taxing. But such vehicles to be exigible for taxation by the State must be vehicles suitable for use on roads. (i) The expression vehicle etymologically means a carriage. As per Websters New 20th Century Dictionary it means (1) "any vessel or vehicle or runners for carrying persons or objects as a cart, stage, automobile etc", (2) "any means of carrying, conveying or communicating". (ii) According to the Oxford Advanced learner's Dictionary a vehicle is a "thing that is used for transporting people or goods from one place to another". (iii) According to Black's Law Dictionary 8th Edition vehicle is (1)" something used as an instrument of conveyance", (2) "any conveyance used in transporting passengers or things by land, water or air". It, therefore, follows the expression "vehicle" etymologically takes within its sweep any thing or article used for transporting people or goods from one place to another either by land, water or air. 17. Therefore, the expression "vehicle" under entry 57 but for the qualifying words therein "suitable for use on roads" takes within its sweep not only vehicles that play on land but also includes vehicles that ply in water or air including railways. 18. But under the scheme of the Constitution the legislative competence to deal with Railways or Airways or by sea or national waterways the mechanically propelled vehicles falling with the Parliament under entries 224, 295 and 306 of the List I, the legislative competence to levy tax on such activity of carriage of goods or passengers is also vested in the Parliament under entry 897. Therefore, the makers of the Constitution qualified the expression vehicle occurring under entry 57 of List II as meaning only those vehicles suitable for use on roads in contradistinction to the vehicles that could be operated in water or air. 19. Therefore, the makers of the Constitution qualified the expression vehicle occurring under entry 57 of List II as meaning only those vehicles suitable for use on roads in contradistinction to the vehicles that could be operated in water or air. 19. The Motor Vehicles Act, 1988 is made by the Parliament in exercise of the legislative competence conferred on it by the Constitution under Article 246(1) read with entry 35 of List III of the Seventh Schedule. The said Act defines a motor vehicles as a "vehicle adapted for use on roads". In our view it means any mechanically propelled vehicle capable of playing on roads in contradistinction to the vehicles suitable to travel in water or air. But the Parliament while making the Motor Vehicles Act by definition excluded (1) vehicles which run upon "fixed rails" and (2) vehicles designed for use "only in a factory or in any other enclosed premises", from the sweep of the definition though technically such vehicles may also be capable of plying on the roads having regard to the design and nature of the vehicle whether the plying of such vehicles would serve any purpose of carrying passenger's or goods is altogether a different question. 20. Therefore, we need to examine as to what is the purport and meaning of the clause "vehicles suitable for use on roads" occurring under Entry 57 of List II of the Seventh Schedule. 21. The meaning of the expression "vehicles suitable for use on roads" occurring under Entry 57 of the List II of Seventh Schedule and the expression "vehicles adapted for use upon roads" occurring under Section 2(28) of the Motor Vehicles Act fell for the consideration of the Supreme Court in (1974) 2 SCC 777 (supra). The Supreme Court at para 23 held as follows: 23. The meaning of the word "adapted" in Section 2(18) of the Act is itself indicated in Entry 57 of List II of the Seventh Schedule to the Constitution, which confers a power on the State to tax vehicles whether propelled mechanically or not and uses the word "suitable" in relation to its use on the roads. The words "adapted for use' 'must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. . The words "adapted for use' 'must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. . In this sense, the words "is adapted" for use have the same connotation as "is suitable" or "is fit" for use on the roads. The question before the Supreme Court in that case was whether dumpers, rockers, tractors etc. are motor vehicles within the meaning of the relevant State Motor Vehicles Taxation Acts. The Supreme Court was dealing with a batch of appeals arising from different States under the concerned Motor Vehicles Taxation Acts. One of the appeals arose out of a suit filed by the owners, inter alia, of dumpers in the State of Orissa. They sought a declaration, inter alia, that the dumpers were not motor vehicles which are not required to be registered under the Motor Vehicles Taxation Act on the ground that they are not suitable for plying on the roads. The trial Court in this regard held, as observed by the Supreme Court at para 3- The case of dumpers and tractors, however, was held to stand on a different footing, as these vehicles were adapted for being used on roads for transporting the goods of the plaintiff, though it may be within its own field of operation. 22. Another appeal in the batch of appeals before the Supreme Court in the said case arose out of a writ petition decided by the Mysore High Court. Dealing with the same question it was held- that the dumpers can be used for carrying loads even outside the mining area or any other enclosed premises, like any other 'goods vehicle' which is required to be registered under the Act. According to the Mysore High Court "what would take the vehicle out of the category of 'motor vehicles' under the Mysore Act is that they must be such as "are incapable of use in any other place for the purpose of transport of goods or passengers" and the mere fact that such vehicles are not put to use elsewhere or used for a special purpose does not take they out of the purview of the definition of Motor Vehicle. The above mentioned conclusion of the Mysore High Court is summarized by the Supreme Court in para 5 as follows: ...the Dumpers can be used for carrying loads even outside the mining are or any other enclosed premises, like any other 'goods vehicle' which is required to be registered under the Act. According to it, what would take the vehicle out of the category of 'motor vehicles' under the Mysore Act is that they must be such as "are incapable of use in any other place for the purpose of transport of goods or passengers", which, in its view, was not "the same thing as saying that if the vehicle is not put to use elsewhere, or used for a special purpose it must be exempted from registration under Section 22 of the Act. Dealing with this question the Supreme Court held at para 29 as follows: In ascertaining the intention of the Legislature in adopting the method of merely referring to the definition of 'motor vehicle' under the Act for the purpose of the Taxation Act, we have to keep in mind its purpose and intendment as also that of the Motor Vehicles Act. We have already stated what these purposes are and having regard to them the registration of a motor vehicle does not automatically make it liable for taxation under the Taxation Act. The Taxation Act is a regulatory measure imposing compensatory taxes for the purpose of raising revenue to meet the expenditure for regulation of traffic. The validity of the taxing power under Entry 57, List II of the Seventh Schedule read with Article 301 of the Constitution depends upon the regulatory and compensatory nature of the taxes. It is not the purpose of the Taxation Act to levy taxes on vehicles which do not use the roads or in any way form part of flow of traffic on the roads which is required to be regulated. The regulations under the Motor Vehicles Act for registration and prohibition of certain categories of vehicles being driven by persons who have no driving licence, even though, those vehicles are not plying on the roads, are designed to ensure the safety of passengers and goods etc. and for that purpose it is enacted to keep control and check on the vehicles. Legislative power under Entry 35 of List III (Concurrent List) does not bar such a provision. and for that purpose it is enacted to keep control and check on the vehicles. Legislative power under Entry 35 of List III (Concurrent List) does not bar such a provision. But Entry 57 of List II is subject to the limitations referred to above, namely, that the power of taxation thereunder cannot exceed the compensatory nature which must have some nexus with the vehicles using the roads viz. public roads. If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed. And concluded at para 28 as follows: ....appeals are partly allowed and it is held that dumpers and rockers though registrable under Act are not taxable under the Taxation Act as long as they are working solely within the premises of the respective owners. In other words the Supreme Court held that it is not the ability of the vehicle to ply on the roads that determines its exigibility to the taxation under the Motor Vehicles Taxation Act but the actual plying of the vehicle on public roads that makes the vehicle exigible to taxation. The Supreme Court in our humble view reached that conclusion on ground that the taxes under Entry 57 of List II are compensatory in nature as held by the Supreme Court earlier in AIR 1962 SC 1406 Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, and, therefore, no user of the public road no taxation of the vehicle. A principle propounded on the interpretation of the Constitution but not the language of the taxing statute. 23. However, in (1980) 3 SCC 619 , (supra) when the same question arose from the State of Kerala the Supreme Court while reiterating the principle enunciated earlier in (1974) 2 SCC 777 , (supra) took the same view and held that the vehicles are not per se exempted from taxation but can claim exemption from the liability to pay the tax by establishing that they do not ply on public roads. The appellants before the Supreme Court owned 17 vehicles like tractors, trailers and lorries which otherwise answer the description of a motor vehicle under the meaning of Section 2(28) of the Motor Vehicles Act but they claimed that such vehicles are not liable for taxation under the Kerala Motor Vehicles Taxation Act in view of the fact that those vehicles ply exclusively within the tea estates owned by the company admeasuring 9422.44 acres and not on any public roads. When the issue was raised before the Kerala High Court the High Court held that under the relevant charging section all motor vehicles used or kept for use in the State irrespective of the fact whether such vehicles are used or kept for use on public roads or not are liable for taxation. The legislative competence of the State of Kerala to tax motor vehicles which do not ply on public roads was not questioned by the owners. At para 3 of the judgment the Supreme Court noticed this aspect in the following words: The constitutional validity of the Act was not questioned before the Bench. The question that eventually considered by the Supreme Court was noted at para 4 as follows: The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and not intended to be used on public roads of the State, the tax is leviable? Dealing with the question the Supreme Court held at paras 5 and 6 and eventually at para 8 as follows: 5. Section 3 of the impugned Act [Kerala Motor Vehicles Taxation Act (Kerala Act 24 of 1963)] provides that a tax 'shall be levied on all motor vehicles used or kept for use in the State". The levy is within the competence of the State legislative as Entry 57 in List II authorises levy on vehicles suitable for use on roads. It has been laid down by this Court in Bolani Ores Ltd. v. Orissa, that under Entry 57 of List II, the power of taxation cannot exceed compensatory nature which must have some nexus with the vehicles using the roads i.e. public roads. If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed. 6. If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed. 6. If the words 'used or kept for use in the State' are construed as used or kept for use on the public roads of the State, the Act would be in conformity with the powers conferred on the State legislature under Entry 57 of List II. If the vehicles are suitable for use on public roads they are liable to be taxed. In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time to avoid evasion of tax the legislature has prescribed the procedure. Sub-section (2) of Section 3 provides that the registered owner or any person having possession of or control of a motor vehicle of which a certificate of registration is current shall for the purpose of this Act be deemed to use or keep such vehicles for use in the State except during any period for which the Regional Transport Authority has certified in the prescribed manner that the motor vehicle has not been used or kept for use. Under the sub-section there is a presumption that a motor vehicle for which the certificate or registration is current shall be deemed to be used or kept for use in the State. This provision safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State. At the same time the interest of the bona fide owner is safeguard by enabling him to claim and obtain a certificate of non-user from the prescribed authority. In order to enable the owner of the vehicle or the person who is in possession or in control of the motor vehicle of which the certificate of registration is current to claim exemption from tax he should get a certificate in the prescribed manner from the Regional Transport Officer. 8. While we agree with the contentions of the learned Counsel for the appellant that the tax is only exigible on vehicles used or kept for use on public roads, we must observe that in order to claim exemption from payment of tax requirements of Section 3(2) or Sections 5 and 6 should be satisfied. 8. While we agree with the contentions of the learned Counsel for the appellant that the tax is only exigible on vehicles used or kept for use on public roads, we must observe that in order to claim exemption from payment of tax requirements of Section 3(2) or Sections 5 and 6 should be satisfied. Surrender of the registration certificate contemplated under Section5 is for making sure that the motor vehicle is not being put to any use and does not have the effect of annulling the certificate of registration. If the requirement contemplated under the Act is not satisfied the registered owner or person in possession or control of the vehicle would not be entitled to claim any exemption from payment of tax. In other words the Supreme Court while agreeing with the principle laid down in (1974) 2 SCC 777 , (supra) that motor vehicles are exigible to taxation under the relevant State law only when they are used or kept for used on public roads held that the owners of the vehicles who claim exemption from the tax must seek an exemption in accordance with the relevant provisions of the law that such vehicles do not actually ply on the public roads. The Supreme Court was not dealing with the taxability of the dumpers but with the case of lorries, tractors and trailers, which are commonly used for carrying goods and ply on the roads, the Supreme Court directed the State to conduct an enquiry into the question of fact whether the vehicles of the appellant therein plied on the road or not. The Supreme Court in (1980) 3 SCC 619 , (supra) at para 9 held: 9. It remains for consideration as to what is the appropriate order that should be passed on the facts and circumstance of this case. As a general proposition of law as exemption from payment of tax had not been claimed and obtained as required under this Act, the appellant would be liable to pay tax but as already pointed out and set out clearly in the order of the R.T.O., the question that was raised and disputed was whether on the assumption that the vehicles were kept for use in the states alone and not for use on the public roads of the State, tax is leviable. The authorities proceeded on the basis that even assuming that the vehicles were not intended to be used on the public roads, they are liable to tax. In this view, the appellant did not apply for exemption or notify non-user as required under the provisions of the Act. But on the facts and circumstances of the case it is clear that the appellant claimed for exemption from tax on the ground that it was not being used on the public roads. In the circumstances of the case we have to take it that though, in terms, requirement of Sections 3 and 5 have not been complied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis. But as has been specifically stated by the R.T.O., the question whether estate roads are, public roads is reserved for further investigation and decision. Equally the R.T.O. will be at liberty to act under Section 5(2) of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road. 24. Once again the question came up for consideration of the Supreme Court in 1992 Supp (3) SCC 133, (supra). It appears from the said judgment that the limited submission before the Supreme Court was on the basis of the fact situation. At para 7 the Supreme Court noted as follows: ...addressed us only on the fact situation to contend that the Dumpers (which includes Rockers) are vehicles not adapted for use upon roads and, therefore, they are outside the scope of Section 2(b) of the impugned Taxation Act, 1975 and hence not within the ambit of the charging section. Section 3(1) provides that subject to the other provisions of the Act, on and from the date of commencement of the Act, there shall be levied on motor vehicles, used or kept for use within the State, a tax at the rate specified under the Schedule. It is evident that the tax is chargeable on using or keeping for use a motor vehicle; a motor vehicle adapted for use on roads. Therefore, the Supreme Court went on to examine "whether dumpers and rockers are motor vehicles used on roads". It is evident that the tax is chargeable on using or keeping for use a motor vehicle; a motor vehicle adapted for use on roads. Therefore, the Supreme Court went on to examine "whether dumpers and rockers are motor vehicles used on roads". The Supreme Court at para 8 held as follows: Reverting back to Bolani Ores Case it would be found that the pre-amendment definition of Section 2(18) conveyed that though they were motor vehicles as such, within the meaning of the first part of the definition, but nonetheless were not so because of their specified user, i.e. if they were used solely upon the premises of the owner. It would also be found that under the post-amendment definition, though a motor vehicle may be adapted for use upon roads, nonetheless in order to be taken out of the category it had further to be adapted for use only in a factory or in any other premises. But here no new facts have been pleaded by the appellants before the High Court as to how the Dumper/Rocker was a vehicle of a special type, adapted for use only in a factory or in any other premises. When Dumpers and Rockers were held registrable by this Court under the Act, it commended to this Court to hold that Dumpers and Rockers were definitely motor vehicles adapted for use upon roads, as otherwise they would have been held not so within the meaning of 'motor vehicle'. Rather the case of Bolani Ores (one of the appellants before us) then pointedly pleaded was that Dumpers were used for transporting ore from the mining faces to the crushing and screening plant or from head mine stock pile to near railway siding. Dumpers were thus shown to be vehicles engaged in the transport of goods. And consequentially held at para 9 that appellants had no case- The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the Dumpers or Rockers as suggested are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word 'adapted' in the provision was read as 'suitable' in Bolani Ores case by interpretation on the strength of the language in Entry 57, List II of the Constitution. The word 'adapted' in the provision was read as 'suitable' in Bolani Ores case by interpretation on the strength of the language in Entry 57, List II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicles per se, as held in Bolani Ores case were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence is entitled to a regulatory and compensatory tax. (Exemptions claimable apart). The appellants, therefore, in our view, have no case for grant of any relief in these appeals. The above extracted portion of the judgment indicates that the Supreme Court was of the view that the dumpers by the very nature are not manufactured or adopted for use only in factories or closed premises and, therefore, liable to pay tax. The Supreme Court also recognised that such liability is subject to the exemptions claimable. 25. Therefore, it is the consistent view of the Supreme Court in all the above mentioned cases that vehicles which can properly be called "motor vehicles" within the meaning of the Motor Vehicles Act are taxable under the relevant Taxation Act of the concerned States if the Taxation enactment prescribes the appropriate charge. The Supreme Court consistently held that such tax is payable only when the vehicles are used or kept for use on the public roads of the State, in view of the constitutional limitations of the States taxing power. 26. The only other submission of the learned Counsel for the petitioner which is required to be examined, before we part with these cases, is that in view of the scheme of the Motor Vehicles Act under Section 41(4) and the Rule 2(ca) of the Rules framed under the Motor Vehicles Act read with the definition under Section 2(28); dumpers are not motor vehicles at all. 27. Section 418 of the Motor Vehicles Act deals with the mode of registration of motor vehicles. 27. Section 418 of the Motor Vehicles Act deals with the mode of registration of motor vehicles. Sub-section (1) of Section 41 contemplates an application to made by the owner seeking registration of and a further stipulation that such an application must be accompanied by such documents as may be prescribed by the Central Government. Sub-section (2) of contemplates that the application be accompanied by such fee as may be prescribed by the Government. Sub-section (3) contemplate issuance of a certificate of registration in the form prescribed by the Government containing the prescribed particulars. Sub-section (4) contemplates that the certificate of registration shall also specify "the type of the motor vehicle, being a type as the Central Government may, having regard to the design construction and use of the motor vehicle, by notification in the Official Gazette, specify". The Central Government issued a notification dated 5th November, 2005 indicating various categories of vehicles. The notification contains various classes of 'transport vehicles' as well as non transport vehicles. Under the category of non transport vehicles the last item, i.e. item (xiv) is construction equipment vehicles as defined in Rule 2(c)(a). Rule 2(ca) of the Rules framed under the Motor Vehicles Act in the year 1989 reads as follows: 2(ca) "construction equipment vehicle" means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities. It can be seen from the above that varieties of the vehicles specified under the definition "designed for off highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities. The explanation9 to the said definition also recognises that such "construction equipment vehicles" shall be "non-transport vehicles" (which is a defined expression under the Motor Vehicles Act), so long as the driving of such a vehicle on the road is incidental (1) to the main off-highway function; (2) such a driving is for a short duration and (3) such vehicle runs at a speed not exceeding 50 kms per hour. 28. 28. The mere exclusion of the construction equipment vehicle from the purview of the definition of transport vehicle as defined under Section 2(2) of the Motor Vehicles Act does not automatically take the vehicle out of the definition of the motor vehicle nor that is the purpose of Section 41 of the Motor Vehicles Act. Section 41 of the Motor Vehicles Act only deals with the various pieces of information required to b e contained in the certificate of registration. Its purpose is not either to add to or subtract from the definition of a motor vehicle. The Motor Vehicles Act recognises various classes of motor vehicles defined under various sub-sections of the Act, like 'heavy goods vehicle', 'heavy passenger motor vehicle', 'maxicab', 'motor cab', 'motor cycle', 'omnibus' etc. So with reference to each one of these categories of vehicles the registration certificate is required to contain the appropriate details prescribed by the Central Government. However, the learned counsel placed heavy reliance on certain observations made by the Supreme Court in (1997) 5 SCC 752 , (supra) which is already taken note of earlier in this judgment. It was a case arising under the Central Excise and Salt Act, 1944. The appellant before the Supreme Court was a manufacturer of tyres and tubes of various sizes which were excisable under Item 16 of the Central Excise Tariff. The said item essentially deals with tyres of various categories like tyres for 'motor vehicles' or 'cycles' and others. The appellant before the Supreme Court was manufacturing tyres of a particular size which are intended to be fitted to heavy moving vehicles like dumpers etc. It was the case of the appellant that such dumpers cannot be classified as motor vehicles for the purpose of the Central Excise Act. In the said context the Supreme Court examined whether the dumpers were motor vehicles for the purpose of the Central Excise Act. The expression "motor vehicle" itself was neither defined in the Central Excise Act or the Rules framed thereunder. However, Entry 34 of the Central Excise Tariff deals with motor vehicles and the description therein was agreed by the counsel appearing on the either sides before the Supreme Court as that could be imported for the purpose of deciding whether the tyres such as the one in question are tyres for motor vehicles. However, Entry 34 of the Central Excise Tariff deals with motor vehicles and the description therein was agreed by the counsel appearing on the either sides before the Supreme Court as that could be imported for the purpose of deciding whether the tyres such as the one in question are tyres for motor vehicles. The explanation to the Entry 34 of the Tariff dealing with the motor vehicles read as follows: Explanation.-For the purposes of this item, where a motor vehicle is mounted, fitted or fixed with any weight lifting, earth-moving and similar specialized material handling equipment, then such equipment, other that the chassis, shall not be taken into account. It is in that context the Supreme Court at para 10 made certain observations which are relied upon by the leaned counsel for the petitioners. We are of the opinion that the observations cannot be imported into the scheme of the Motor Vehicles Act because it is well settled that each enactment must be construed on the basis of its language and scheme and that the legislature is always at liberty to define the same expression differently in different enactments. Therefore, the submission of the learned Counsel for the petitioners in this regard is rejected. 29. Coming to the question of the relief in this case we may point out that Section 8 of the Assam Motor Vehicles Taxation Act provides for remission of tax for a period during which a vehicle is not used subject to the condition that it is established that the vehicle with respect to which tax is paid has not been used continuously for a period of not less than 30 days from the date on which the tax was paid. Section 8 reads as follows: Remission of tax for period during which vehicle is not used-Where any person who has paid a tax or instalment of a tax proves to the satisfaction of the licensing officer that the motor vehicle, in respect of which such tax or instalment of tax has been paid, has not been used for a continuous period of not less than thirty days since the tax or instalment of tax was last paid, then, when the tax or instalment of tax is next payable, he shall not be liable to pay any arrear of tax in respect of the said continuous period of thirty days or where the said continuous period exceeds thirty days, in respect of every full period of thirty days to a deduction from the amount of tax or instalment of tax, which he would otherwise have been liable to pay, of an amount equal to one-twelfth of the annual rate of tax payable in respect of the said vehicle. The clause "has not been used" occurring under Section 8 in our view must be understood in the light of the various judgments of the Supreme Court referred to earlier, as use on public roads. Though the petitioners asserted in these writ petitions that the vehicles in question are exclusively used and confined in mining areas it is a pure question of fact which is to be determined on the basis of evidence. Therefore it is open to the petitioners to first pay the tax in accordance with law and claim remission under Section 8 of the Assam Motor Vehicles Taxation Act by establishing to the satisfaction of the appropriate authority that for any period for which the tax is paid the vehicle did not in fact ply on any public roads. 30. With this direction the writ petitions are disposed of. 1. "41 (4) In addition to the other particulars required to be Included In the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification In the Official Gazette, specify". 2. 4. Imposition of tax. 1. "41 (4) In addition to the other particulars required to be Included In the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification In the Official Gazette, specify". 2. 4. Imposition of tax. (1) Save as otherwise provided by this Act or by any rules made thereunder or by any other law for the time being in force no motor vehicle shall be used In the Assam State unless the owner thereof has paid In respect of it a tax at the appropriate rate specified in the First Schedule to this Act and save as hereinafter specified, such tax shall thereafter by payable annually notwithstanding that the motor vehicle may from time to time cease to be used. 3. 39. Necessity for registration.- No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.". 4. 22. Railways. 5. 29. Airways, aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodrome; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies. 6. 30. Carriage of passengers and goods by railways, sea or air, or by national waterways in mechanically propelled vessels. 7. 89. Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights. 8. 41. Registration, how to be made.-(1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government. Provided that where a motor vehicle is jointly owned by more persons that one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. Provided that where a motor vehicle is jointly owned by more persons that one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. (2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government. (3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government. (4) an additional to the other particulars required to be included in the certificate of registration it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design construction and use of the motor vehicle, by notification in the Official Gazette, specify. 9. Explanation,-A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power.