TMI Blog2015 (3) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the appellant/Revenue is before this Court by filing the present appeal. This Court, vide order dated 26.10.2007, admitted the appeal on the following substantial questions of law :- i) Whether the Commissioner (Appeals) is right in holding that the refund claim made by the respondent is not barred by limitation when the respondent has not paid the duty under protest? ii) Whether the Commissioner (Appeals) is right in holding that the claim for refund cannot be rejected for the non-production of original documents, viz., original shipping bills and original cess paid challans? iii) Whether the Appellate Tribunal is right in dismissing the appeal filed by the appellant relying upon the decision reported in 2005 (190) ELT 72, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of law, at the present point of time, it is seen that the 3rd substantial question of law alone survives for consideration, and, therefore, the Court heard the learned counsel on the said question of law. Insofar as substantial questions of law Nos.1 and 2 are concerned, they are academic and, therefore, are not dealt with. 4. Heard the learned standing counsel appearing for the appellant and perused the materials available in the typed set of documents. Inspite of notice, there is no representation for the respondent. 5. It is fairly brought to the notice of this Court by the learned standing counsel for the appellant/Revenue that similar issue has been considered in the case of Commissioner of Customs Vs Edhayam Frozen Foods (CMA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of the same assessee, reported in 68 STC 284. 37. The Kerala High Court while answering the question as to whether cuttlefish is a variety of fish, or not, after referring to various technical meanings, in the case of Sunbay Food Corporation v. State of Kerala, (1986) 63 STC 270), has observed as under: Thus, the poignant feature of cuttle-fish is that it is a non-vertebrate. Prawns and lobsters are also non-vertebrates. Even the Act does not include prawns and lobsters in the category of fish, as they have been made taxable items. There is no dispute about it. The conclusion to be drawn from the above discussion is that cuttlefish cannot be treated as a fish variety. It is hence not an exempted item. 38. The finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Woolens (P) Ltd., (1988 (Supp) SCC 796) to contend that the question as to whether fish would include prawns/shrimps, is a question of fact, when the Tribunal and the authorities below have held that they are two different commodities under section 130 of the Customs Act, an appeal which involves a substantial question of law, can alone be entertained and the issue being question of fact, the Court need not interfere with the finding arrived at by the ultimate fact finding authority. 42. In that case before the Apex Court, an importer who imported consignment of wool materials, claimed that it as wool waste and hence not liable for customs duty as per a Notification. The department was of the opinion that what was imported was not wool w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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