TMI Blog2005 (7) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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., ld. 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : (i) State of Orissa v. C.I. Foods Ltd. [1982] 50 STC 152 (Orissa). (ii) C.I. Foods Ltd. v. State of Orissa [1987] 68 STC 284 (Orissa). (iii) TBR Exports (Madras) v. State of Andhra Pradesh [1999] 116 STC 257 (A.P.) He also referred to Sunbay Food Corporation v. State of Kerala [1986] 63 STC 270 (Kerala), wherein the High Court found that "cuttlefish" - an invertebrate of the phylum, "Mollusca" - was not a kind of fish. Ld. Counsel also referred to the Supreme Court's judgment in Sterling Foods v. State of Karnataka Another - 1986 (26) E.L.T. 3 (S.C.), wherein the trade parlance test was applied to hold that there was no essential difference between raw shrimps, prawns and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re told that they are paying cess on such exports under Section 14 of the MPEDA Act. 'Fish' is also one of the "marine products'" under the MPEDA Act. It is significant to note that shrimp, prawn and fish are treated as different marine products under the Act. The expression "all varieties of fishery products known commercially as shrimp, prawn, ..... fish...." used in the above definition is noteworthy. It is clear from this expression that Parliament recognized that shrimp, prawn and fish were known as different items in commercial parlance. Like the MPEDA Act, the APC Act is also a national legislation. The Central legislature provided for levy of a cess on fish under the APC Act without defining 'fish'. It also provided for levy of a cess on "'marine products" under the MPEDA Act and defined the scope of "marine products" for this purpose. The fact that shrimp, prawn and fish were differently known in commercial parlance was acknowledged by the national legislature while defining "marine products" under Section 3 of the MPEDA Act. In our considered view, this aspect is relevant to the present enquiry. Again, we think that one will be justified in looking at the classification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... popular usage to many animals of diverse characteristics, living in the water". Webster's New World Dictionary (1988) : "Loosely, any animal living in water only, as a dolphin, crab or oyster; often used in combination (shellfish, jellyfish)". The Oxford English Dictionary (1978) : "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, molluses, 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-blooded". The DRs have harped on the 'loose' meanings of fish given in Webster's dictionaries and on the extended meaning given in the Oxford dictionary. We must discard these, which were not acceptable to the law-makers. What seems to be appealing to us is the meaning of 'fish' in modern scientific language as noted in the Oxford dictionary (vide supra) because modern popular usage tends to approximate to this meaning. 6. The trade parlance distinction between fish and prawn/shrimp, recognized by the legislature, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two judgments of the Orissa High Court and two of the Andhra Pradesh High Court. In all these cases, fish and prawn were held to be different commodities on the basis of commercial parlance. In the case of C.I. Foods Ltd. (supra), fish and prawn were held to be two different commodities for want of evidence to shown that they belonged to the same class. The view taken in C.I. Foods case was followed by the Andhra Pradesh High Court in the case of TBR Exports (supra). In the instant case, the Department has not been able to establish that 'fish' included prawn/shrimp also. Hence the above decisions will have to be followed. The Andhra Pradesh High Court's judgment dated 26-2-99 [1999 (111) E.L.T. 352 (A.P.)] was rendered in a batch of writ petitions filed by M/s. Jaya Satya Marine Exports Pvt. Ltd. In the said case, the High Court held that cess was not leviable on prawns or shrimps under the APC Act, following its earlier decision in TBR Exports case (supra) and the Orissa High Court's decision in C.I. Foods case. Ld. DRs have pointed out that the Andhra Pradesh High Court's judgment dated 26-2-1999 was quashed by the Hon'ble Supreme Court in Commissioner of Customs, Visakhapatnam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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