COMMISSIONER OF CUSTOMS Vs. EDHAYAM FROZEN FOODS

JUDGEMENT

(1.) In all these appeals of the Revenue, the appellant is aggrieved by orders of the lower appellate authorities setting aside demands of cess under the Agricultural Produce Cess Act, 1940 (APC Act, for short) on prawn/shrimp exported by the respondents. Section 3 of the APC Act provides for levy of cess in the form of Customs duty at the rate of 0.5% ad valorem on all scheduled articles which are produced in, and exported from, India. Fish is specified as Item No. 7 in the schedule to the Act. The question before the lower appellate authorities was whether "fish" included prawn and shrimp. They answered this question in the negative, but without certainty. Accordingly, giving the benefit of doubt to the assessees, the lower appellate authorities dropped the levy under Section 3 of the APC Act in respect of prawn/shrimp.

(2.) Ld. JDRs, Shri A. Jayachandran and Shri C. Mani reiterated the grounds of the appeals and submitted that the view taken on the above issue in the impugned orders was not correct. The gist of their arguments was that 'fish' was a general and broad term, which covered prawn and shrimp also. It was submitted that, in common parlance, fish included prawn/shrimp as these were seen collectively as seafoods by the common people. In the absence of any definition of the term 'fish' in the APC Act, it should be construed on the basis of how it was known in common parlance. Referring to the reliance placed by the lower appellate authorities on the definitions/descriptions used in the Marine Products Export Development Authority Act, Sales Tax Act, etc., Id. DRs submitted that it was not open to those authorities to borrow anything from other statutes for the purpose of getting at the meaning of any term or expression used in the APC Act. Ld. DRs also referred to the meanings of 'fish' as given in various dictionaries and submitted that the common people used it as a collective term to include all aquatic animals, which were harvested. It was also pointed out that the lower appellate authorities had not categorically held that the term 'fish' did not include prawns/shrimps. They were only giving the benefit of doubt to the assessees.

(3.) On behalf of the respondents, learned Senior Advocate Shri Joseph Vellapalli led the arguments. Ld. Counsel referred to the provisions of the APC Act and the Marine Products Export Development Authority Act (MPEDA Act, for short). The APC Act was enacted with the object of making better financial provision for the Indian Council Agricultural Research, the MPEDA Act was made to provide for the establishment of an authority for the development of the marine product industry under the control of the Union and for matters connected therewith. 'Marine products' as defined under the MPEDA Act included fish, prawn, shrimp and other fishery products. Ld. Senior Counsel wanted us to note that prawn, shrimp and fish were separately mentioned in the definition of 'marine products". It was pointed out that Section 14 of the said Act provided for levy of cess on all marine products, which were exported. On the other hand, under the APC Act, cess was leviable only on fish and not on any other marine product. In this manner, Id. Senior Counsel endeavoured to show that 'fish' did not include prawn or shrimp. He argued that, for the purpose of levying cess on prawn/shrimp under Section 3 of the APC Act, the burden was on the Revenue to show that prawn and shrimp were the same as fish inasmuch as, among the various marine products, only fish was specified in the schedule to the Act. In this context, reliance was placed on the Supreme Court's judgments in CCE v. Calcutta Steel Industries and Ors. - and Union of India v. Garware Nylons Ltd. - , wherein the burden of proof of taxing authority was examined and it was held that the burden was on that authority to show that the particular goods was taxable. Ld. Senior Counsel also pointed out that fish, prawn and shrimp were biologically different and were known as different items in common parlance. Different statutes also treated them as different commodities. In this connection, reference was made to the MPEDA Act and the Tamil Nadu General Sales Tax Act. Ld. Counsel also referred to certificates issued by (1) Prof. K. Mohan Kumar Nair, M.Sc., (Zoology), M.Sc., (Ind. Fish.), Ph.D. (Aqua Culture) of the College of Fisheries under the Kerala Agricultural University; (2) Dr. R. Santhanam. M.Sc., Ph.D., Dean of Fisheries College and Research Institute under the Tamil Nadu Veterinary & Animal Sciences University, and (3) Joint Director (QC) of the Marine Products Export Development Authority under the Ministry of Commerce and Industry, Govt. of India. All these experts held fish and prawns/shrimps to be different groups of animals. Ld. Senior Advocate, then, cited the following judgments holding prawns to be different from fish :