COMMISSIONER OF CUSTOMS Vs. EDHAYAM FROZEN FOODS

JUDGEMENT

(1.) THIS batch of appeals is filed by the Commissioner of Customs, Tuticorin, questioning the correctness of the order of the Customs, Excise, Service Tax Appellate Tribunal, South Zone Bench, Chennai, dated 08.07.2005 made in Final Orders Nos.951 to 988 of 2005 whereby and wherein the Tribunal has rendered a finding that the exports of shrimps/prawn made by the respondents were not exigible to levy of cess under section 3 of the Agricultural Produce Cess Act, 1940 read with item No.7 in the Schedule attached to that Act, as the prawn and shrimps are different from fish for the purpose of Agricultural Produce Cess Act, 1940. The common questions of law that have arisen out of the 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 Harmonized 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 respondents-exporters indisputably exported prawn/shrimps. On such export, cess was levied by the Assistant Commissioner of Customs. THE exporter filed writ petition No.15565 to 15568 of 1999 to restrain the Assistant Commissioner from levying and collecting cess under the Agricultural Produce Cess Act, 1940 on export of prawns/shrimps. THE writ petition was disposed of with the direction to the exporter to file appeals under the provisions of the Customs Act before the Commissioner for resolution of the lis on merits. Accordingly, the exporters preferred appeal before the Commissioner of Customs and Central Excise (Appeals I) against the order of levying cess on assessment of shipping bill of 5753/27.08.1999. THE Commissioner, by his order dated 29.03.2004 observed thus :