K.K. TATED, J.

Heard the learned counsel for the rival parties.

The present appeal is preferred by the Appellant/Assessee against the judgment and order dated 7th November, 2008 passed by the First Bench of the Maharashtra Sales Tax Tribunal, Mumbai in VAT Appeal No. 1/2008.

FACTS

The relevant facts leading to the present appeal can be summarized as under :-

The Appellant is a private limited Company and it has manufacturing unit at Vasai in Thane district. The Appellant started manufacturing bicycles "Model Matrix" with an auxiliary electric motor having a 30 minutes backup power of less than 0.5 kilo watt, which is also called as "E-Bike-Matrix". Battery is provided along with pedal assistance. Battery is required to be charged if a person wants to use the electrical energy. No engine is fitted in the said "E-Bike". The Appellant was of the view that the said product is covered by the word "bicycle", as such, the same is exigible to tax @ 4% as it falls under the schedule Entry C-14 which reads thus :-

"Bicycles, tricycles, cycle rickshaws and parts, components and accessories and tyres and tubes thereof."

The Appellant, therefore, filed an application under Section 56(1)(e) of the Maharashtra Value Added Tax Act, 2002 (in short "the VAT Act, 2002") before the Commissioner of Sales Tax, Maharashtra State, Mumbai for determination of the rate of tax on "E-Bike-Matrix". It is the case of the Appellant that the product sold by the Appellant is not "motor-vehicle" and therefore, the same is covered by the schedule Entry C-14 which is exigible to tax @ 4%. In support of its contentions, the Appellant produced on record various documentary evidence including a certificate issued by the Automotive Research Association of India stating therein that the said product is not "motor vehicle". The Appellant also produced the affidavits of its clients, who had purchased the said product as "bicycle".

The said application was decided by the Sales Tax Commissioner, Mumbai vide its order dated 17.12.2007 holding that the said modern electric bicycle is not a "motor vehicle" but not covered by the word "bicycle" falling in the schedule Entry C-14 and therefore, the same is exigible to tax @ 12.5%.

Aggrieved by the aforesaid order dated 17.12.2007, the Appellant preferred the VAT Appeal No. 1/2008 before the Maharashtra Sales Tax Tribunal, Mumbai. The Tribunal vide its order dated 07.11.2008 dismissed the appeal upholding the order passed by the Commissioner of Sales Tax. Hence, the present appeal under Section 27 of the VAT Act, 2002.

SUBMISSIONS

Mr. Patkar, learned counsel for the Appellant submitted that both the authorities below erred in giving the restricted meaning to the word "bicycle" mentioned in the schedule Entry C-14 which covers all types of bicycles. The Tribunal has erroneously equated the "E-Bike" with the vehicles which are known as scooters and motorcycles. According to him, Entry 87 of the same Schedule - C speaks about the "sewing machines" which are either pedal operated or electric motor operated and invariably have both the options, therefore, can it be said that such sewing machine which has electric motor is excluded from that entry ?

Mr. Patkar further submitted that the Tribunal is not justified in observing that the intention of the legislature is otherwise. According to him, if the intention of the legislature was otherwise then it would have excluded the "cycle with auxiliary motor" from the word "bicycle" mentioned in that entry. He submitted that wherever the legislature intended the exclusion, it has done so with specific wording. For example, Entry No. C-29(a) which applies to "drugs" excludes therefrom the "mosquito repellents in any form". In similar way, there are several entries in the statute.

Mr. Patkar further submitted that the Tribunal ought to have considered the common parlance evidence submitted by the Appellant in its proper perspective. However, the Tribunal erred in holding that the ev