2005 (7) TMI 180 - AT - Customs

Prawn & Shrimp Exports Exempt from Cess under Agricultural Produce Cess Act

The Tribunal concluded that prawn and shrimp are distinct from fish for the purposes of the Agricultural Produce Cess Act, 1940. They affirmed the lower ... Cess on agricultural produce Issues Involved: Whether 'fish' under the Agricultural Produce Cess Act, 1940 (APC Act) includes prawn and shrimp for the purpose of cess levy.Detailed Analysis:1. Background and Legislative Framework:The appeals concern the Revenue's challenge against the lower appellate authorities' decisions, which set aside demands of cess under the APC Act on prawn/shrimp exports. Section 3 of the APC Act imposes a cess in the form of Customs duty at 0.5% ad valorem on scheduled articles produced in and exported from India, with 'fish' listed as Item No. 7 in the schedule. The central issue was whether 'fish' included prawn and shrimp.2. Arguments by Revenue:The Revenue argued that 'fish' is a broad term encompassing prawn and shrimp, commonly perceived as seafood by the general public. They contended that the term should be understood in common parlance, supported by dictionary definitions, which broadly categorize various aquatic animals under 'fish.' They also argued that the lower appellate authorities did not conclusively determine that prawn/shrimp were not fish, instead giving the benefit of doubt to the assessees.3. Arguments by Respondents:The respondents, led by a Senior Advocate, argued that prawn and shrimp are distinct from fish both biologically and in common parlance. They referenced the Marine Products Export Development Authority Act (MPEDA Act), which separately lists prawn, shrimp, and fish under 'marine products.' They asserted that the burden of proof was on the Revenue to demonstrate that prawn and shrimp were included under 'fish' for cess purposes, citing Supreme Court judgments emphasizing the taxing authority's burden to prove taxability.4. Examination of Legislative Intent:The Tribunal examined the legislative intent, noting that the APC Act does not define 'fish.' They considered the MPEDA Act, which categorizes shrimp, prawn, and fish as different marine products, indicating a legislative acknowledgment of their distinct commercial identities. The Tribunal also referenced the Customs Tariff Act, where fishery products are classified separately from shrimp and prawn, reinforcing their distinct treatment for tax purposes.5. Scientific and Expert Opinions:The Tribunal reviewed expert opinions from fisheries scholars, which detailed the biological differences between fish and shrimp. Fish are vertebrates with specific anatomical and physiological characteristics, whereas shrimp are invertebrates with distinct features. These scientific distinctions further supported the argument that prawn and shrimp are not 'fish.'6. Judicial Precedents:The Tribunal considered various High Court judgments, which held that fish and prawn/shrimp are different commodities based on commercial parlance. Although the Supreme Court quashed an Andhra Pradesh High Court judgment on procedural grounds, it did not express any opinion on the merits, leaving the High Court decisions in C.I. Foods Ltd. and TBR Exports intact, which supported the respondents' stance.7. Conclusion and Decision:The Tribunal concluded that prawn and shrimp are distinct from fish for the purposes of the APC Act. They affirmed the lower appellate authorities' decisions, removing any residual doubt and holding that prawn and shrimp exports were not subject to cess under Section 3 of the APC Act.8. Final Judgment:All appeals by the Revenue were dismissed, and the Tribunal's decision was pronounced in open Court on 8-7-2005.