TaxTMI 
TaxTMI 
2015 (3) TMI 1036
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the respondent is not barred by limitation when the respondent has not paid the duty under protest? ii) Whether the Commissioner (Appeals) is right in holding that the claim for refund cannot be rejected for the non-production of original documents, viz., original shipping bills and original cess paid challans? iii) Whether the Appellate Tribunal is right in dismissing the appeal filed by the appellant relying upon the decision reported in 2005 (190) ELT 72, which is the subject matter of appeal before this Hon'ble Court" 2. The respondent is engaged in the business of exporting marine products, more specifically prawns/shrimps. The appellant/Revenue was collecting cess at the rate of 0.5% on the ground that prawns/shrimps are fish....
X X X X Extracts X X X X
X X X X Extracts X X X X
....academic and, therefore, are not dealt with. 4. Heard the learned standing counsel appearing for the appellant and perused the materials available in the typed set of documents. Inspite of notice, there is no representation for the respondent. 5. It is fairly brought to the notice of this Court by the learned standing counsel for the appellant/Revenue that similar issue has been considered in the case of Commissioner of Customs Vs Edhayam Frozen Foods (CMA Nos. 212 to 223/07, etc. batch - Dated 4.7.08), and has been answered in favour of the assessee and against the Revenue. Accordingly, it is submitted that similar order may be passed in this matter as well. 6. In Edhayam Frozen Food's case (supra), the questions of law initially fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... observed as under: "Thus, the poignant feature of cuttle-fish is that it is a non-vertebrate. Prawns and lobsters are also non-vertebrates. Even the Act does not include prawns and lobsters in the category of fish, as they have been made taxable items. There is no dispute about it. The conclusion to be drawn from the above discussion is that cuttlefish cannot be treated as a fish variety. It is hence not an exempted item." 38. The finding of the above case is also yet another support to the conclusion we arrived at. The ultimate conclusion arrived at by the Division Bench was cuttlefish is a non-vertebrate and hence not a fish. In this case, prawns/shrimps are also non vertebrates and hence, they are different from fish, which is a verte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....question of law, can alone be entertained and the issue being question of fact, the Court need not interfere with the finding arrived at by the ultimate fact finding authority. 42. In that case before the Apex Court, an importer who imported consignment of wool materials, claimed that it as wool waste and hence not liable for customs duty as per a Notification. The department was of the opinion that what was imported was not wool waste, but wool sleeve and imposed duty. The experts gave a report that it was not possible to give an opinion by visual observations of the material and that there was no specification laid down for the same by the ISI or International Standard Organization. In those circumstances of the case, the Tribunal noted ....