TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 831
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....fish, cess as provided in section 3 of the Agricultural Produce Cess Act, 1940 was levied on the respondents. They claimed refund of the amounts and the refund applications were rejected. The orders rejecting the refund applications were challenged in appeal before the Commissioner of Customs (Appeals), who allowed the appeals and ordered refund. The Department carried the matter in appeals before the Tribunal and the Tribunal dismissed the appeals. 4.The Agricultural Produce Cess Act, 1940 was repealed by the Cess Laws (Repealing and Amending) Act, 2006 with effect from 25.9.2006. Despite such repeal, even for the purposes subsequent thereto, cess under the Act was levied on the exports effected by the respondents. In such cases also, they claimed refund and on its rejection, orders were challenged before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeals which orders were also confirmed by the Tribunal. It is in this background, these appeals are filed. 5.Though we heard the counsel for the appellant and the learned counsel appearing for the respondents at length, we found that similar issues were decided by the Tribunal in favour of the respondents expo....
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...., there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary to deciding the particular case. See: Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. v. Custodian of Vested Forests MANU/SC/0308/1990 : [1990]2SCR401 ; Union of India v. Deoki Nandan Aggarwal MANU/SC/0013/1992 : AIR 1992 SC 96; Institute of Chartered Accountants of India v. Price Waterhouse MANU/SC/1233/1997 : (1997) 6SCC312 ; Hrbhajan Singh v. Press Council of India MANU/SC/0181/2002 : [2002]2SCR369 and Grasim Industries Ltd. v. Collector of Customs Bombay MANU/SC/0256/2002 : 2002 (141)ELT593(SC) . 24. The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not flow from the plain, unambiguous language of the statute. Words canno....
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....It is also wellsettled that all aquatic creatures cannot be grouped into a category of "fish" for there are several kinds of such creatures. In "Encyclopedia Britannica" Vol.7, 15th Edition 330, "fish" is described as "a variety of cold blooded aquatic vertebrate of several evolutionary lines". In the World Book of Encyclopaedia Vol VII 1977 Edition at page 138) "fish" is described as "vertebrates that live in water". In Concise Oxford Dictionary, "fish" is described as "vertebrates cold blooded animal, living in the water, having gills, through out life". 29. Webster's Encyclopedic Unabridged Dictionary of the English Language defines fish as --1. any of various cold blooded, completely aquatic vertebrates, having gills, commonly fins and typically an elongated body usually covered with scales. 2. any of various other aquatic animals. 3. the flesh of fishes used as food. In the same dictionary, the meaning of Prawn is found to be --any of various shrimp like decapod crustaceans of the general palaemon, penaeus, etc., certain of which are used as food. The Oxford English Dictionary Vol IV, 1978 gives the meaning of fish as under: "In popular language, any animal living exclus....
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....on parlance distinction between "fish" and "prawn/shrimp" supported by the dictionary meaning and the Biological differences stated above make it clear that though fish and prawn/shrimp are aquatic animals, they are different from each other. The commercial parlance as well as biological classification, as extracted above, show that fish (vertebrata) is conspicuously different from prawn/shrimp (crustaceans). 33. In addition to that, before the Tribunal, volumes of opinions about the biological difference between fish and shrimps were made available. A Professor from the Agricultural University has given opinion to the effect that fishes are cold blooded, aquatic, vertebrates of super class pisces under the phylum, chordata, whereas shrimps are aquatic crustaceans, belonging to the large class of crusacea under the phylum arthropoda. Shrimps are invertebrates. The body of fish is covered by dermal scales but that of a shrimp is covered by chitinous exoskeleton. In fish, blood is red-coloured and contains hemoglobin, while in shrimp, it is colourless, thin, watery fluid. The digestive system in fish is coiled and fully developed with different regions like stomach, small intestine,....
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....ce Cess Act, 1940, does not include within itself prawns and shrimps. 36. We can also take support from the decision of the Orissa High Court in the case of State of Orissa v. CI Foods Limited (1982) 50 STC 152, wherein a Division Bench has found that biologically, "fish" and "prawn" are two different classifications, and qualitatively, "fish" and "prawn" are two different commodities and on the evidence placed, even in the common parlance, they were understood as two different items. There was no scope for one item to pass for the other. The said decision of the Orissa High Court was followed by another Division Bench of the same High Court in the case of the same Assessee reported in 68 STC 284. 37. The Kerala High Court while answering the question as to whether "cuttlefish" is a variety of "fish", or not, after referring to various technical meanings, in the case of Sunbay Food Corporation v. State of Kerala (1986) 63 STC 270, has 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....