TMI Blog1999 (12) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... of 0.5% Adv. for the period from 1-1-1993 to 31-5-1995. The Order-in-Appeal No. 91/94, dated 20-12-1994 had set aside the Order-in-Original and allowed the present respondents appeal on the ground that mushrooms are different from vegetables and therefore the said CESS which is applicable only to vegetables is not leviable thereon. The Order-in-Original confirmed the demand of Rs. 3,25,521/- raised under show cause notice, dated 11-5-93 on account of such CESS leviable on the ground that Chapter 7 of the Customs Tariff specifically includes edible vegetables in the category of vegetables. 2. Revenue prays for restoration of the Order-in-Original by setting aside the Order-in-Appeal impugned. 3. Ld. DR submits that the said prayer has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms would be classifiable as vegetables and those exported by the respondents would fall under the above classification. (f) He submits that reference to other statutes for this purpose would be illconceived in view of clear provisions in the said CESS Act that it would be collected as duties of Customs. (g) Finally, he also submits that even in Trade Parlance, mushrooms are known and consumed as vegetables by vegetarians and are sold as vegetables in all major vegetable shops. 4. Learned Consultant for respondents on the other hand submits that mushrooms cannot be regarded as vegetables and hence not liable to CESS for the following reasons :- (a) Botanical classification clearly shows that mushrooms are Fungus and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from normal vegetables in the trade. Learned Consultant, therefore, submitted that the Order-in-Appeal impugned be upheld. 5. We have carefully considered these submissions and records of the case and find considerable force in the arguments of ld. DR for the following reasons :- (1) In the said CESS Act, under which the CESS is levied, it has been clearly provided that CESS shall be collected as duties of customs and for this purpose, the relevant laws and procedures including those of refund under the Customs Act shall apply. In view of this specific provision, and in the absence of any other definition in the said CESS Act, for the word vegetable , it would be legally correct to impart the same classification to mush ..... X X X X Extracts X X X X X X X X Extracts X X X X
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