Jawahar Lal Gupta, C.J.

Is a Mechanical Pavar Finisher, which is used for spreading the concrete mixed with coal tar of the road, a motor vehicle so as to be exigible to the levy of Tax under Section 3 of the ‘Kerala Tax on Entry of Goods Into Local Areas Act, 1994?’ This is the short question that arises for consideration in this appeal. The learned Single Judge has answered this question in favour of the writ petitioner. Hence, the respondents have filed this appeal.

2. The respondent –Writ petitioner is the Managing Director of the partnership firm. It is engaged in the construction of the roads, etc. The respondent purchased the Pavar from M/s. Gujarat Appollo Equipments Limited, Gujarat. It was dismantled and loaded on a lorry. It reached the State of Kerala on October 4, 1998. The Sales tax Inspector served a notice dated October 4, 1998 on the respondent’s firm calling upon it to deposit an amount of Rs.92,880/- by way of Entry Tax. The value of the pavar was fixed as Rs.9,28,780/-. The respondent objected. However, since he was in need of the equipment, the deposit was made. Thereafter, he approached the authorities for refund. Having failed, he filed a petition under Article 226 of the Constitution, viz. O.P. No. 5060 of 1999. The matter was considered by the learned Single Judge. The authority was directed to consider the representation dated October 23, 1998 and decide it within a period of one month. Thereafter the matter was kept pending for a considerable length of time. Ultimately, the respondent’s request was ‘rejected with the observation that he had “not produced any documents to substantiate” his claim. Thus, the request for refund was declined. A copy of the order passed by the authority on February 19, 2000 has been produced as Exhibit P9.

3. Aggrieved by the order, the respondent again approached this Court through a petition under Article 226 of the Constitution. In this petition, it was specifically pleaded that the equipment imported by the writ petitioner was used only for making roads. It was not a motor vehicle. It was not exigible to levy of entry tax. In fact, it fell within Entry 21 – ‘other machinery’, which had been exempted from the levy of tax vide notification dated June 3, 1998. Thus, the action of the authorities in levying and collecting tax was illegal.

4. The Department filed a counter affidavit. It was pleaded that the writ petitioner had not produced any material to show that “he ‘Pavar’ was a machine. In fact, it was after giving due and reasonable opportunity that the impugned order was passed. The writ petitioner filed a reply affidavit controverting the averments in the counter affidavit.

5. The matter was considered by the learned Single Judge. A perusal of the judgment shows that during the course of hearing it was admitted that the equipment imported by the writ petitioner was “transported from place to place mounted on a lorry. It is not capable of carrying passengers of the road. It is also admitted that there was no practice of registering the above as Motor Vehicle.” In view of this factual position, the learned Single Judge took the view that “imposition of entry tax on the above vehicle was misconceived”. Thus, a direction for refund along with interest was given. Hence, this appeal.

6. Mr. Raju Joseph, learned counsel for the appellants has vehemently contended that the goods imported by the respondent fall within the definition of a motor vehicle as contemplated under Section 2 (28) of the Kerala Motor Vehicles Act. Thus, the tax was validly levied and collected. He has placed reliance on the decision of their Lordships of the Supreme Court in Bose Abraham V. State of Kerala (2001) AIRSCW 446). The claim made on behalf of the appellants has been controverted by Ms. Mayadevi learned counsel for the respondent.

7. The 1994 Act was enacted to “provide for levy of tax on the entry of goods into the local areas for consumption, use or ‘sale therein.” Section 2 gives the