COMMISSIONER OF CUSTOMS Vs. ABAD FISHERIES

JUDGEMENT

(1.) REVENUE has filed these appeals against the Orders -in -Appeal No. 168/2006; 169/2006; 170/2006 all dated 2.6.2006 and OIA No. 113/2006 dated 4.5.2006 passed by the Commissioner of Customs (Appeals), Cochin. Since the issue is same in all these appeals, we are passing a common order.

(2.) THE Respondents export "Frozen Headless Shell -on White Shrimps". The shipping bill was assessed for Cess at the rate of 0.5% ad valorem under Section 3% of the Agricultural Produce (AP) Cess Act, 1940 treating the impugned goods as fish classifiable under Item 7 of the Schedule to the said Act. The goods were subjected to Cess under the Marine Product Development Authority Act, 1972. The dispute in these appeals is whether the levy of Cess on the impugned goods is sustainable, as the Cess is being collected by giving an extended meaning to the term fish. The lower authority decided the issue against the Respondents treating the impugned goods as fish for the purpose of levy of Cess under the AP Cess Act 1940. The appellants challenged decision of the lower authority on several grounds before the Commissioner (A). The Commissioner (A) has examined the meaning of fish and came to the conclusion that the impugned goods cannot be classified as fish under Item 7 of the Schedule to the AP Cess Act, 1940. Therefore, he allowed the appeals of the Respondents.

(3.) REVENUE is aggrieved over the impugned orders on the following grounds. (i) The Respondent avails the benefit of DEPB Scheme. In the DEPB Schedule all, marine products are covered under the Product Group 66 "Fish and Fish Products". (ii) The exporter has processed the goods (Shrimps) for export, on the approval accorded tot hem by the Export Inspection Agency as per the Export (Quality Control and Inspection) Act, 1962 and the Rules framed under the Act. In the "Export of fresh, frozen and Processed fish and fishery products (Quality Control and Inspection and Monitoring) Rules, 1955" framed under the said Act, Section 2.4 defines 'Fresh Frozen and Processed Fish and Fishery Products as "all sea water, fresh water animals...excluding frogs. Under these Rules also the classification of marine products consists of only two titles, i.e., 'fish' and 'fishery product'. The title 'fish' covers all forms of marine animals such as crustaceans, molluscs etc. The title fishery products cover the processed form of the above. Hence, it is clear that the title fish is broad one encompassing all forms of marine life. (iii) Thus, even though the title 'Fish' has been used in the DEPB Schedule and the 'Export of fresh, frozen and processed fish and fishery products (Quality Control and Inspection and Monitoring) Rules, 1955", the intention of the government was to extent the benefit of the enactments to all forms of marine products. Similarly, while mentioning the entry 'Fish' at Sl. No. 7 in the Schedule to the A.P. Cess Act, 1940, the intention of the Government was to cover all types of marine products.