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2016 (8) TMI 831 - KERALA HIGH COURT

2016 (8) TMI 831 - KERALA HIGH COURT - 2016 (340) E.L.T. 661 (Ker.) - Classification - export of marine products - fish shrimps, prawns, cuttlefish etc., - Held that: - the goods in question are not fish to attract the levy of cess as provided in the Agricultural Produce Cess Act, 1940. No reason found to deviate from the principles laid down therein. - Refund of cess paid - cess levied under section 3 of the Agricultural Produce Cess Act, 1940 - Held that: - the Cess Act was repealed by t .....

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J.VATHIKULAM,SC,C.B. EXCISE SRI.DENU JOSEPH FOR THE RESPONDENT : ADV. SRI.C.K.KARUNAKARAN AND ADV. SMT.T.P.LEKSHMI 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 Commissio .....

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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in appeals before the Tribunal and the Tribunal dismissed the appeals. 4.The Agricultural Produce Cess Act, 1940 was repealed by the Cess Laws (Repealing and Amending) Act, 2006 with effect from 25.9.2006. Despite such repeal, even for the purposes subsequent thereto, cess under the Act was levied on th .....

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ndents exporters holding that the products exported are not fish attracting the levy of cess, which have been confirmed by a Division Bench of Madras High Court in its judgment in Commissioner of Customs, Tuticorin v. Edhayam Frozen Foods [2008 (230) ELT 225 (Mad)]. In that judgment, the Division Bench has held thus: 6. 7. 21. As regards, the second question of law, we are not able to accept the argument of the learned Additional Solicitor General that fish includes molluscs and crustaceans and .....

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item No. 7 in the schedule to the Act sets out only fish . 22. How to interpret the provisions or the entries contained in the Schedule to the fiscal statutes has been repeatedly explained by the Apex Court in catena of decisions. The uniform opinion of the Supreme Court, in all those cases, run as follows: No words or expression used in any statute can be stated to be redundant or superfluous. In matters of interpretation, one should not concentrate too much on one word and pay too little atte .....

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ich 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 .....

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141)ELT593(SC) . 24. The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretati .....

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ute then there is no tax in law. Then it is for the legislature to do the needful in the matter. See: Mathuram Agrawal v. State of M.P. MANU/SC/0692/1999 : AIR2000SC109 : MANU/SC/0692/1999 : AIR2000SC109 ; Bank of Chettinad Ltd. v. CIT MANU/PR/0070/1940 : (1940) 8 ITR 522; IRC v. Duke of Westminister 1936 AC 1; Parrington v. Attorney General (1869) 4 HL 100; Russel (Inspector of taxes) v. Scoot (1948) 2 All E. R. 1. 25.Having in mind the above said well established legal principle, we will have .....

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suppose our merchants to be naturalists or geologists or biologists and thus resort should be made to understand the popular meaning or the meaning attached to them by finding out as to how those goods were understood by those dealing with 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 p .....

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ed 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, fish is described as vertebrates cold blooded animal, living in the water, hav .....

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ertain of which are used as food. The Oxford English Dictionary Vol IV, 1978 gives the meaning of fish as under: In popular language, any animal living exclusively in the water; primarily denoting vertebrate animals provided with fins and destitute of limbs; but extended to include various cetaceans, crustaceans, molluscs, etc. In modern scientific language (to which popular usage now tends to approximate) restricted to a class of vertebrate animals provided with gills throughout life and cold-b .....

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dopterygota Enteropneusta Chordata Hemichordata Urochordata Cephalochordata Agnatha Vertebrata Gnathostomata Chondricythyes Osteichthyes Amphibia Reptilia Mamalia Aves From this, it is evident that Crustaceans are found under the sub phylum of mandibulata and phylum of Arthropoda. Shrimp is smaller in size, prawn is medium in size and lobster is larger in size. They all belong to the sub phylum of Crustacea. 31. Though in certain dictionaries, fish has been denoted primarily as vertebrates with .....

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. The commercial parlance as well as biological classification, as extracted above, show that fish (vertebrata) is conspicuously different from prawn/shrimp (crustaceans). 33. In addition to that, before the Tribunal, volumes of opinions about the biological difference between fish and shrimps were made available. A Professor from the Agricultural University has given opinion to the effect that fishes are cold blooded, aquatic, vertebrates of super class pisces under the phylum, chordata, wherea .....

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nds 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 enac .....

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ducts 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 commercially as shrimp, prawn, lobster, crab, fish, shell-fish, other aquatic animals or plants or parts thereof and any other products which the Authority may, by notification in the Gazette of India, declare to be marine products for the purposes of this Act. The said definition has been taken in aid to find out the .....

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toms Tariff Act, 1975 wherein also fish has been classified under different heading than shrimps/prawns, which has been classified in yet another heading. 35. From the whole lot of materials available, the one and only conclusion that can be arrived at is that the expression fish found as item No. 7 in the Schedule to the Agricultural Produce Cess Act, 1940, does not include within itself prawns and shrimps. 36. We can also take support from the decision of the Orissa High Court in the case of S .....

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he 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 the .....

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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 w .....

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