TMI Blog2016 (8) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... SHMI VARMA JUDGMENT Antony Dominic, J. 1. These appeals are filed by the Commissioner of Customs invoking the appellate remedy available under section 130 of the Customs Act, challenging the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zone Bench at Bangalore dismissing the appeals filed by the Department and confirming the orders passed by the Commissioner of Customs (Appeals). 2. We heard learned counsel for the appellant and the learned counsel appearing for the respondents. 3. Briefly stated, the facts of the case are that the respondents are exporters of marine products such as shrimps, prawn, cuttle fish, octopus, molluscs etc. Treating the said items as fish, cess as provided in section 3 of the Agricultural Produce Cess Act, 1940 was levied on the respondents. They claimed refund of the amounts and the refund applications were rejected. The orders rejecting the refund applications were challenged in appeal before the Commissioner of Customs (Appeals), who allowed the appeals and ordered refund. The Department carried the matter in appeals before the Tribunal and the Tribunal dismissed the appeals. 4.The Agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of interpreting any word while considering a statute is together the mens and sententia legis of the legislature. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. 23. As stated by the Privy Council, in the case of Crawford v. Spooner (1846) 6 Moore PC 1, We cannot aid the legislature s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there. In case of an ordinary word, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary to deciding the particular case. See: Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. v. Custodian of Vested Forests MANU/SC/0308/1990 : [1990]2SCR401 ; Union of India v. Deoki Nandan Aggarwal MANU/SC/0013/1992 : AIR 1992 SC 96; Institute of Chartered Accountants of India v. Price Waterhouse MANU/SC/1233/1997 : (1997) 6SCC312 ; Hrbhaja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith them, that is to say, to their commercial sense. See: Mathuram Agrawal v. State of M.P. MANU/SC/0692/1999 : AIR2000SC109 . 27. The fish and prawns are delicacies in the South India. If the common parlance test is applied, it cannot be contended that fish and prawn are one and the same commodity. If a man were to ask for fish in the market and if prawn is provided or in the vice versa, he would not accept the same. However, it is an admitted fact that no evidence to that effect is available in this case. 28. It is well-settled that if there is some difficulty, as in this case, there is no evidence to show that the term concerned does not have a particular popular connotation, the Courts have to resort to dictionaries and lexicons. It is also wellsettled that all aquatic creatures cannot be grouped into a category of fish for there are several kinds of such creatures. In Encyclopedia Britannica Vol.7, 15th Edition 330, fish is described as a variety of cold blooded aquatic vertebrate of several evolutionary lines . In the World Book of Encyclopaedia Vol VII 1977 Edition at page 138) fish is described as vertebrates that live in water . In Concise Oxford Dictionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Diplopoda Chilopoda Symphyla Insecta apterygota Exopterygota Endopterygota Enteropneusta Chordata Hemichordata Urochordata Cephalochordata Agnatha Vertebrata Gnathostomata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands like liver, pancreas, etc., In shrimp, digestive system is straight with just one digestive gland, viz., hepatopancreas. It appears that the expert opinion is akin to the dictionary meanings extracted above. 34. Further, to find out as to how a product or good or a thing has been understood by the Legislature, or in Orderto find out the intention of the legislature, there is no harm nor taboo to consider the way in which the same good has been dealt with by the Legislature in some other enactment. The Agricultural Produce Cess Act, which is the subject matter in this case, is a central Act enacted by the Central Government for the purpose of making better financial provision for the carrying out by the Indian Council of Agricultural Research of the objects for which it was established. Another central enactment, which provided for establishment of a Statutory Authority to sort out the problems faced by the marine product industry, enacted by the Central Government is the Marine Products Export Development Authority Act, 1972 (Act 13 of 1972), in which marine product has been defined as follows: marine products includes all varieties of fishery products known commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 of the above case is also yet another support to the conclusion we arrived at. The ultimate conclusion arrived at by the Division Bench was cuttlefish is a non-vertebrate and hence not a fish . In this case, prawns/shrimps are also non vertebrates and hence, they are different from fish, which is a vertebrate. 39. The Andhra Pradesh High Court in the case of T.B.R. Exports (Madras) v. State of Andhra Pradesh 116 STC 257, after referring to the decisions of the Orissa High Court in the cases of C.I. Foods cited supra, has held as follows: Having given our anxious considerations to the rival contentions, we have reached the conclusion that it is not possible to agree with the contentions canvassed by the learned Counsel for the Petitioner-Assessee, for obvious reasons while applying a common parlance test it cannot be seriously contended that fish and prawns are one and the same commodity. If a lay man were to ask for fish in the market and if prawn is provided he would promptly refuse it and vice versa. F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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