TaxTMI 
TaxTMI 
2008 (7) TMI 117
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....order of the Tribunal for the decision of this Court in all these cases, as framed at the stage of admission, are: (1) Whether the Tribunal failed to consider that the provision of the Customs Act or the explanatory notes on the Harmonised systems of Nomenclature (HSN) cannot be relied upon to determine the scope of the various entries under the Schedule of the Agricultural Produce Cess Act, 1940? (2) Whether the Tribunal is right in not considering the issues that there cannot be any distinction with regard to definition and classification of fish and prawns/shrimps under the provisions of the Customs Tariff Act, 1975, the Agricultural Produce Act, 1940 and the Marine Products Export Development Authority Act? 2. As the facts in all these cases are similar, for the sake of convenience, the appeal in C.M.A. No. 212 of 2007 is taken as a typical case and the facts of that case are dealt with herein. 3. The Agricultural Produce Cess Act, 1940 was enacted to make better financial provision for the carrying out by the Indian Council of Agricultural Research of the objects for which it was established and for that purpose to impose, on certain articles a cess by way of customs duty ....
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....mmissioner of Customs carried the matter on appeal to the CESTAT, South Zone Bench at Chennai. The Tribunal, in its common order, dated 8-7-2005 held as follows : "For the reasons stated we hold that the export of shrimp/prawn made by the respondents were not exigible to levy of cess under Section 3 of the Agricultural Produce Cess Act, 1940. The lower appellate authorities were giving the benefit of doubt to the assessee as they could not reach a finding with certainty that shrimp/prawn was different from fish. Beyond doubt, we hold that prawn and shrimps are different from fish for the purpose of the Agricultural Produce Cess Act, 1940 and we sustain the impugned order after removing the doubt. In the result, the appeal stands dismissed." 7. Learned Additional Solicitor General contended that under the scheme of the Agricultural Produce Cess Act, 1940, the articles shown in the schedule to the Act, are descriptive whereas the schedule to the Customs Tariff Act is classificatory. Hence, the provision of the customs Tariff Act or the explanatory notes on the Harmonious Systems of Nomenclature should not have been relied upon to determine the scope of the various entries under the....
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....the appeal filed under Section 130 of the Customs Act is not maintainable as the issue to be decided is one of classification of the goods for the purpose of assessment. Section 130 of the Customs Act provides for an appeal to the High Court, but specifically excludes the appeal from an order relating to the determination of the question, having a relation to the rate of duty of customs or to the value of goods, for the purposes of assessment. This appeal having a relation to the rate of duty of customs cannot be maintained. 13. On merits he contended that the term 'fish' stated in the schedule to the Agricultural Produce Cess Act, 1940, in the absence of any definition in that Act, has to be construed by applying the common parlance theory. The question as to whether the expression 'fish' includes prawns/shrimps is a question of fact. When the question of fact has been decided by the authorities under the Act as well as the Tribunal, the Court shall not interfere with such a finding of fact of the Tribunal arrived at bona fide while exercising the jurisdiction under Section 130 of the Customs Act, 14. Mr. C. Natarajan, learned Senior Counsel appearing for the appellant argued in....
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....ining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT : does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods." While thus holding, the Apex Court dismissed the Civil Appeal by observing thus : "Strictly speaking, on the interpretation that we have placed upon the said expression, this appeal would not lie from the impugned order of CEGAT to the Supreme Court. But we do not propose to dismiss it on that ground. We dismiss it on the ground that the appellants were in error in contending that their appeal before CEGAT ought to have been heard by a Special Bench and could not have been heard and decided by a member of CEGAT, sitting singly." 19. In the above stated observations, the terms 'Reference by CEGAT lies to the High court' can be read as appeal to the High Court from the order of the CEGAT. After evolving the test as above with reference to the facts of that case wherein th....
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....st be looked at generally and the context in which it is used and not in isolation. The elementary principle of interpreting any word while considering a statute is to gather the mens and sententia legis of the legislature. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided." (emphasis supplied). 23. As stated by the Privy Council, in the case of Crawford v. Spooner, (1846) 6 Moore PC 1, "We cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there. In case of an ordinary word, 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, AIR 1990 SC 1747, Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96, Institute of Charte....
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.... by those dealing with them, that is to say, to their commercial sense. (See Mathuram Agrawal v. State of M,P., (1999) 8 SCC 667). 27. The fish and prawns are delicacies in the South India. If the common parlance test is applied. It cannot be contended that fish and prawn are one and the same commodity. If a man were to ask for fish in the market and if prawn is provided or in the vice versa, he would not accept the same. However, it is an admitted fact that no evidence to that effect is available in this case. 28. It is well settled that if there is some difficulty, as in this case, there is no evidence to show that the term concerned does not have a particular popular connotation, the Courts have to resort to dictionaries and lexicons. It is also well settled that all aquatic creatures cannot be grouped into a category of 'fish' for there are several kinds of such creatures. In 'Encyclopaedia 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. VIII 1977 Edition at page 138) 'fish' is described as 'vertebrates that live in water', in Concise Oxford Dicti....
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....nder the sub phylum of mandibulata and phylum of Arthropoda. Shrimp is smaller in size, prawn is medium in size and lobster is larger in size. They all belong to the sub phylum of Crustacea. 31. Though in certain dictionaries, 'fish' has been denoted primarily as vertebrates with fins and destitute of limbs, but extended to include cetaceans, crustaceans, molluscs, etc., lastly, it was found noted, 'but in the modern scientific language, it was restricted to vertebrates provided with gills throughout the life and cold blooded.' 32. The common 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 c....
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....wn and fish are stated as different marine products, show that the shrimp, prawn and fish were known as different items in commercial parlance. Like that the Tribunal also took the clue from the Customs Tariff Act, 1975 wherein also fish has been classified under different heading than shrimps/prawns, which has been classified in yet another heading. 35. From the whole lot of materials available, the one and only conclusion that can be arrived at is that the expression 'fish' found as item No. 7 in the Schedule to the Agricultural Produce 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 under stood 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 t....