Commissioner of Customs v. M/s. Edhayam Frozen Foods

18) M/S.Supreme Exports,Elurupadu Village,Kalla Mandal,Bhimavaram, W.G.District,Andrapradesh. .. 1st respondent in CMA 2375/0719)M/s.B.M.R.Exports,S.10, TNHB complex,180, Luz Church Road,Mylapore, Chennai 600 004 .. 1st respondent in CMA 2376/0720)M/S.Khader Investments &Trading Company Pvt. Ltd.,3-284, Mutukadu Road,Neelankarai, Chennai-41. .. 1st respondent in CMA 2377/0721) M/s. Premier Marine Products,3-284, Mutukadu Road,Neelankarai, Chennai-41. .. 1st respondent in CMA 2378/0722) M/S.Kader Exports Pvt. Ltd.,3-284, Mutukadu Road,Neelankarai, Chennai-41 .. 1st respondent in CMA 2379/0723) M/S.Sai Marine Exports pvt. Ltd., 35/4, and 5, Kopalle Village, Kallamandal, Bhimvaram,534 206, W.G. District,Andra Pradesh... 1st respondent in CMA 2380/0724)M/S.Kader Exports Pvt. Ltd.,3-284, Mutukadu Road,Neelankarai, Chennai-41 .. 1st respondent in CMA 2381/0725)M/S. Devi Sea Foods Ltd.,D.No.9-14-8/1C.B.M.Compound,Visakhapatanam-3.. 1st respondent in CMA 2382/0726)M/s. Victoria Marine &Agro Products pvt. Ltd.,No.3,3rd Floor, Gokul Arcade,No.2,S.P.Road, Chennai 600 020 .. 1st respondent in CMA 2383/0727.M/s. Sri Sakthi Marine Products Pvt. LtdNo;16/9, Ram Krish Flats,Nehru Nagar, 3rd Street, Adyar,Chennai - 600 020...1st Respondent in C.M.A.2384/07 https://hcservices.ecourts.gov.in/hcservices/

28.M/s.Sri Sakthi Cold Storage Pvt.LtdNo.16/9, Ramkrish Flats, Nehru Nagar,3rd Street, Adyar,Chennai - 600 020....1st Respondent in C.M.A.2385/0729.M/s.Star Agro MarineB-24, Grounds Floor,London Towers,Kilpauk, Chennai - 600 010...1st Respondent in C.M.A.2386/0730.M/s. Nekkanti Sea Foods,Flat No.G-4, Mahara Block,Masa Bank, Hyderabad,Andhra Pradesh......1st Respondent in C.M.A.2387/0731.M/s. Anjanaya Sea Foods,Dr.No.39-1-406, Second Lane,Balaji Nagar,Ongloe, Andhrapradesh......1st Respondent in C.M.A.2388/0732.M/s.Liberty Frozen Foods Pvt.Ltd3-284, Mutukadu Road,Neelankarai, Chennai - 41...1st Respondent in C.M.A.2389/0733.M/s. Surya Marine Exports,R.H.Road, Kotari Compound,Bim Varam, W.G.District,Andhrapradesh...1st Respondent in C.M.A.2390/0734.M/s. Sai Sea Foods,G-11, Jayaprada Apartments,Navaji Road, Visagapattinam,Andhrapradesh...1st Respondent in C.M.A.2391/0735.M/s.Hari Priya Marine Foods Exports,Yenamadru Road, Bim Varam,Andhra Pradesh....1st Respondent in C.M.A.2392/0736.M/s. Jayalakshmi Sea Foods Pvt,Ltd.,Flat No.6, Door No.8-3-21,Dhanista Apartments, Visagapattinam,Andhrapradesh....1st Respondent in C.M.A.2393/0737.M/s. Devi Marine Foods Exports Ltd.3-284, Mutukadu Road,Neelankarai, Chennai - 41......1st Respondent in C.M.A.2394/07 https://hcservices.ecourts.gov.in/hcservices/

2. The Customs, Excise and ServiceTax Appellate Tribunal, South Zonal Bench, Shastri Bhavan Annexe, Haddows Road, Chennai 6.2nd Respondents in all the CMA'sCivil Miscellaneous Appeals filed under section 130A of theCustoms Act, 1962 against the order dated 08.07.2005 made in FinalOrders Nos.951 to 988 of 2005 on the file of Customs, Excise andService Tax Appellate Tribunal, Chennai 6.For Appellant:Mr.M.Ravindran,Additional Solicitor General, forMr.T.S.SivagnanamFor Respondents:Mr.Joseph Vellapally,Senior Counsel, forMr.C.Natarajan, Senior Counsel,for Mr.R.AshokanJUDGMENTK.RAVIRAJA PANDIAN, J.This batch of appeals is filed by the Commissioner of Customs,Tuticorin, questioning the correctness of the order of the Customs,Excise, Service Tax Appellate Tribunal, South Zone Bench, Chennai,dated 08.07.2005 made in Final Orders Nos.951 to 988 of 2005whereby and wherein the Tribunal has rendered a finding that theexports of shrimps/prawn made by the respondents were not exigibleto levy of cess under section 3 of the Agricultural Produce CessAct, 1940 read with item No.7 in the Schedule attached to that Act,as the prawn and shrimps are different from fish for the purpose ofAgricultural Produce Cess Act, 1940. The common questions of lawthat have arisen out of the order of the Tribunal for the decisionof this Court in all these cases, as framed at the stage ofadmission, are :1. Whether the Tribunal failed to consider that theprovision of the Customs Act or the explanatory notes onthe Harmonised systems of Nomenclature (HSN) cannot berelied upon to determine the scope of the variousentries under the Schedule of the Agricultural ProduceCess Act, 1940?2.Whether the Tribunal is right in not considering theissues that there cannot be any distinction with regardto definition and classification of fish andprawns/shrimps under the provisions of the Customs https://hcservices.ecourts.gov.in/hcservices/ Tariff Act, 1975, the Agricultural Produce Act, 1940 andthe Marine Products Export Development Authority Act? 2. As the facts in all these cases are similar, for the sakeof convenience, the appeal in C.M.A. No.212 of 2007 is taken as atypical case and the facts of that case are dealt with herein.3. The Agricultural Produce Cess Act, 1940 was enacted to makebetter financial provision for the carrying out by the IndianCouncil of Agricultural Research of the objects for which it wasestablished and for that purpose to impose on certain articles acess by way of customs duty on export, the proceeds whereof to bepaid to the said Council. 4. Section 3 of the said Act imposes cess at the rate of onehalf of one per cent ad valorem on all articles included in theschedule which are exported from India. Section 5A of the Actmakes the provisions of the Customs Act 1962 and the Rules andRegulations made thereunder applicable in relation to the levy andcollection of the cess on all the articles included in the scheduleas they apply in relation to the levy and collection of customsduty. Item No.7 of the schedule lists 'Fish' as one of the items,which is exigible for cess on export as provided under section 3. 5. The respondents-exporters indisputably exportedprawn/shrimps. On such export, cess was levied by the AssistantCommissioner of Customs. The exporter filed writ petition No.15565to 15568 of 1999 to restrain the Assistant Commissioner fromlevying and collecting cess under the Agricultural Produce CessAct, 1940 on export of prawns/shrimps. The writ petition wasdisposed of with the direction to the exporter to file appealsunder the provisions of the Customs Act before the Commissioner forresolution of the lis on merits. Accordingly, the exporterspreferred appeal before the Commissioner of Customs and CentralExcise (Appeals I) against the order of levying cess on assessmentof shipping bill of 5753/27.08.1999. The Commissioner, by hisorder dated 29.03.2004 observed thus : "From the above discussion I observe that the taxingstatute, namely, the Agricultural Produce Cess Act hasnot defined the product 'fish'. However, the MarineProduct Export Development Authority Act, 1972, which isalso the taxing statute defines 'fish' and shrimps/prawnsas different product. Therefore, it is observed thatthere seems to be confusion as to whether the fish willinclude shrimps/prawns. It is not explicitly definedunder the Agricultural Produce Cess Act, whereas theCustoms Tariff Act, Harmonised Commodity Description andCoding System, the Marine Products Export DevelopmentAuthority Act, 1972 classify the fish and prawn/shrimpsas different products. In view of the legal position andduly following the above cited case laws, the benefit ofdoubt has to be given to the appellants by not charging https://hcservices.ecourts.gov.in/hcservices/ the cess under the Agricultural Produce Cess Act, 1940.Accordingly, the appeal is allowed with the consequentialrelief".6. The Commissioner of Customs carried the matter on appeal tothe CESTAT, South zone Bench at Chennai. The Tribunal, in itscommon order, dated 08.07.2005 held as follows :"For the reasons stated we hold that the export ofshrimp/prawn made by the respondentS were not exigible tolevy of cess under section 3 of the Agricultural ProduceCess Act, 1940. The lower appellate authorities weregiving the benefit of doubt to the assessee as they couldnot reach a finding with certainty that shrimp/prawn wasdifferent from fish. Beyond doubt, we hold that prawn andshrimps are different from fish for the purpose of theAgricultural Produce Cess Act, 1940 and we sustain theimpugned order after removing the doubt. In the result,the appeal stands dismissed."7. Learned Additional Solicitor General contended that underthe scheme of the Agricultural Produce Cess Act, 1940, the articlesshown in the schedule to the Act, are descriptive whereas theschedule to the Customs Tariff Act is classificatory. Hence, theprovision of the Customs Tariff Act or the explanatory notes on theHarmonious Systems of Nomenclature should not have been relied uponto determine the scope of the various entries under the schedule tothe Agricultural Produce Cess Act, 1940. According to him, theterm 'fish' includes within itself all marine products. In orderto substantiate his case, he brought to our notice the definitioncontained in Indian Fisheries Act, 1897. According to that Act,the word 'fish', includes shell fish. 8. He also relied on the Marine Zones of India (Regulations offishing by Foreign Vessels) Act, 1981. Section 2 of the said Actprovides that --In this Act, unless the context otherwise requires,(b) fish means any aquatic animal, whether piscine ornot, and includes shell fish, crustacean, molluscs, turtle(chelonia), aquatic mammal (the young, fry eggs and spawnthereof) holothurians, coelenterates, sea weed, coral(porifera and any other aquatic life. 9. In order to amplify his arguments, he brought to our noticethe divisions and group of fishes stated in the FAO Year book,1998, wherein under Code No.4 Crustaceans, shrimps and prawns wereshown as group of species. By quoting this the learned AdditionalSolicitor General contended that when shrimps/ prawns were regardedas species of crustaceans, and the Marine Zones of India(Regulations of fishing by Foreign Vessels) Act, 1981, defines'fish' inclusive of crustaceans, as shrimps/prawns being thespecies of crustaceans, should be regarded as one coming within theexpression 'fish' enlisted in the Schedule to the Act. https://hcservices.ecourts.gov.in/hcservices/

10. He further relied on the FAO Technical Guidelines forFisheries Management in which the term 'fish' has been defined asfollows :Definition of 'FISH' (1) Used as collective term, includes molluscs,crustaceans and any aquatic animal, which is harvested(2) Any animal living exclusively in the waterprimarily denoting animals provided with fins and destituteof limbs, but extended to include various crustaceans,octaceans, molluscs, etc. -- Oxford English Dictionary VolIV, 1978.(5) A name loosely applied in popular usage to manyanimals of diverse characteristics, living in the water –Webster 1913 Dictionary. 11. He also relied on Elsevier's Dictionary of Fisheriescomplied by P.E.Eapen, in which fish has been defined to mean thecold blooded animals typically with backbone, gills, and fins andprimarily depended on water as medium to live and breath withgills.12. Per contra, Mr.Joseph Vellapally, learned senior counselappearing for the exporters contended that the appeal filed undersection 130 of the Customs Act is not maintainable as the issue tobe decided is one of classification of the goods for the purpose ofassessment. Section 130 of the Customs Act provides for an appealto the High Court, but specifically excludes the appeal from anorder relating to the determination of the question, having arelation to the rate of duty of customs or to the value of goods,for the purposes of assessment. This appeal having a relation tothe rate of duty of customs cannot be maintained.13. On merits he contended that the term 'fish' stated in theschedule to the Agricultural Produce Cess Act, 1940, in theabsence of any definition in that Act, has to be construed byapplying the common parlance theory. The question as to whether theexpression 'fish' includes prawns/shrimps is a question of fact.When the question of fact has been decided by the authorities underthe Act as well as the Tribunal, the Court shall not interfere withsuch a finding of fact of the Tribunal arrived at bona fide whileexercising the jurisdiction under section 130 of the Customs Act,14. Mr.C.Natarajan, learned Senior Counsel appearing for theappellant argued in line with the arguments made by Mr.JosephVellapally.15. In reply to the said arguments, the learned AdditionalSolicitor General contended that the Legislature, during the timeof enacting Agricultural Produce Cess Act, 1940 did not think todefine the term 'fish' or any other term contained in the schedule.In such circumstances, the object of the Act must be taken into https://hcservices.ecourts.gov.in/hcservices/ consideration, while deciding whether an item enumerated in theSchedule should encompass within it the other items also. As theobject is to make financial provisions for the carrying out theobject by the Indian Council of Agricultural Research, theterminology 'fish' has to be determined in a wider manner toinclude prawns/shrimps also.16. Heard the learned counsel on either side and perused thematerials available on record, perused the questions of lawformulated at the time of admission. From the above narrated factsand the arguments by either of the parties, the following pointsarise for consideration :1.Whether, an appeal under section 130 of the Customs Act ismaintainable before this Court, having regard to thedispute to be resolved in this appeal?2. Whether on the facts and circumstances of the case, theexpression 'fish' stated as item No.7 to the schedule tothe Act, 1940 would include within itself prawns/ shrimps?The questions of law formulated at the time of admission aremodified as above.17. We will now deal with the first question of law regardingthe maintainability of the appeal before this Court. We are notable to concur with the learned counsel for therespondent/exporters that the appeal is not maintainable in view ofthe fact that the determination of question involved in these casesdoes not have a relation to the rate of duty or value of the goodsfor the purpose of assessment. The very section has been thesubject matter of consideration by the Supreme Court in the case ofNaveen Chemicals Mfg. And Trading Co. Ltd. v. Collector of Customs,(1993) 4 SCC 320. Though in that judgment, much was concentratedon section 129(c) of the Customs Act, reference has also been madeto section 130 of the Act and ultimately the Supreme Court hasevolved a test for the purpose of determining the question. 18. To put it in the words of the Supreme Court, the test isas follows : "This, then, is the test for the purposes ofdetermining whether or not an appeal should be heard by aSpecial Bench of CEGAT, whether or not a reference by CEGATlies to the High Court and whether or not an appeal liesdirectly to the Supreme Court from a decision of CEGAT :does the question that requires determination have a directand proximate relation, for the purposes of assessment, tothe rate of duty applicable to the goods or to the value ofthe goods."While thus holding, the apex Court dismissed the Civil Appeal byobserving thus :"Strictly speaking, on the interpretation that we haveplaced upon the said expression, this appeal would notlie from the impugned order of CEGAT to the SupremeCourt. But we do not propose to dismiss it on that https://hcservices.ecourts.gov.in/hcservices/ ground. We dismiss it on the ground that the appellantswere in error in contending that their appeal beforeCEGAT ought to have been heard by a Special Bench andcould not have been heard and decided by a member ofCEGAT, sitting singly."19. In the above stated observations, the terms 'Reference byCEGAT lies to the High Court' can be read as appeal to the HighCourt from the order of the CEGAT. After evolving the test asabove with reference to the facts of that case wherein the goodsimported under licence as crude emitine was found to containemitine hydrochloride, which is not permitted to import under thelicence, were confiscated and allowed the importer to clear thesame on payment of redemption fine. The Supreme Court observed thatthe order of the Additional Collector under appeal before CEGAT inthat case did not have any direct or proximate relation, for thepurposes of assessment, either to the rate of duty applicable tothe said goods or to the value thereof. All that the AdditionalCollector’s order did was to confiscate the said goods allowing tothe appellant the option of redeeming them upon payment of a fineof Rs 10,000. That the appellant might avail of the option, pay thefine and clear the said goods, when questions as to the rate ofduty and value for purposes of assessment might possibly arise, isfar too remote a contingency to satisfy the test that is laid down.20. The principle laid down in that case squarely applies tothe facts of the case. Hence, the first question as to themaintainability of the appeal is answered in the affirmative, inthe sense, the appeal is maintainable.21. As regards, the second question of law, we are not able toaccept the argument of the learned Additional Solicitor Generalthat 'fish' includes molluscs and crustaceans and as such, thecrustaceans would otherwise mean and include prawns/shrimps andhence, prawns and shrimps should be regarded as 'fish' for thepurposes of assessment and such meaning should be given to theexpression 'fish' incorporated as item No.7 to the Schedule to theAct. If that be the intention of the lawmakers, then it would havebeen very easy for them to describe the expression 'all aquaticanimals' or 'all marine products', instead of 'fish' in item No.7of the Act, 1940. But, it is not so, the item No.7 in the scheduleto the Act sets out only 'fish'. 22. How to interpret the provisions or the entries containedin the Schedule to the fiscal statutes has been repeatedlyexplained by the apex Court in catena of decisions. The uniformopinion of the Supreme Court, in all those cases, run as follows :"No words or expression used in any statute can bestated to be redundant or superfluous. In matters ofinterpretation, one should not concentrate too much on oneword and pay too little attention to other words. Everyprovision or every word must be looked at generally andthe context in which it is used and not in isolation. The https://hcservices.ecourts.gov.in/hcservices/ elementary principle of interpreting any word whileconsidering a statute is to gather the mens and sententialegis of the legislature. Wherever the language is clearthe intention of the legislature is to be gathered fromthe language used. While doing so, what has been said inthe statute as also what has not been said has to benoted. The construction which requires for its supportaddition or substitution of words or which results inrejection of words has to be avoided." (emphasissupplied).23. As stated by the Privy Council, in the case of Crawford v.Spooner, (1846) 6 Moore PC 1, "We cannot aid the legislature'sdefective phrasing of an Act, we cannot add or mend and, byconstruction make up deficiencies which are left there. In case ofan ordinary word, there should be no attempt to substitute orparaphrase of general application. Attention should be confined towhat is necessary to deciding the particular case." (See:GwaliorRayons Silk Mfg. (Wvg) Co. Ltd. v. Custodian of Vested Forests, AIR1990 SC 1747, Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC96, Institute of Chartered Accountants of India v. PriceWaterhouse, (1997) 6 SCC 312, Harbhajan Singh v. Press Council ofIndia, (2002) 3 SCC 722, and M/s. Grasim Industries Ltd. v.Collector of Customs, Bombay, J.T. 2002 (3) SC 551.24. The intention of the legislature in a taxation statute isto be gathered from the language of the provisions particularlywhere the language is plain and unambiguous. In a taxing Act it isnot possible to assume any intention or governing purpose of thestatute more than what is stated in the plain language. It is notthe economic results sought to be obtained by making the provisionwhich is relevant in interpreting a fiscal statute. Equallyimpermissible is an interpretation which does not flow from theplain, unambiguous language of the statute. Words cannot be addedto or substituted so as to give a meaning to the statute which willserve the spirit and intention of the legislature. The statuteshould clearly and unambiguously convey the three components of thetax law i.e. the subject of the tax, the person who is liable topay the tax and the rate at which the tax is to be paid. If thereis any ambiguity regarding any of these ingredients in a taxationstatute then there is no tax in law. Then it is for the legislatureto do the needful in the matter.(See:Mathuram Agrawal v. State ofM.P., (1999) 8 SCC 667 = AIR 2000 SC 109, Bank of Chettinad Ltd. v.CIT, (1940) 8 ITR 522 (PC), IRC v. Duke of Westminister, 1936 AC 1,Parrington v. Attorney General, (1869) 4 HL 100, Russel (Inspectorof taxes) v. Scoot (1948) 2 All E. R. 1).25.Having in mind the above said well established legalprinciple, we will have to see whether 'fish', found as the 7thitem in the schedule to the Agricultural Produce Cess Act, wouldinclude within itself prawns/shrimps also. https://hcservices.ecourts.gov.in/hcservices/

26. It is an admitted fact that the word 'fish' has not beendefined in the Act itself. In the absence of the definition, ruleof interpretation is that particular words used by the legislaturein the denomination of articles or goods should be understoodaccording to the common or commercial understanding of the termused, for the Legislature does not suppose our merchants to benaturalists or geologists or biologists and thus resort should bemade to understand the popular meaning or the meaning attached tothem by finding out as to how those goods were understood by thosedealing with them, that is to say, to their commercial sense. (See:Mathuram Agrawal v. State of M.P., (1999) 8 SCC 667). 27. The fish and prawns are delicacies in the South India. Ifthe common parlance test is applied, it cannot be contended thatfish and prawn are one and the same commodity. If a man were toask for fish in the market and if prawn is provided or in the viceversa, he would not accept the same. However, it is an admittedfact that no evidence to that effect is available in this case. 28. It is well settled that if there is some difficulty, as inthis case, there is no evidence to show that the term concerneddoes not have a particular popular connotation, the Courts have toresort to dictionaries and lexicons. It is also well settled thatall aquatic creatures cannot be grouped into a category of 'fish'for there are several kinds of such creatures. In 'EncyclopaediaBritannica' Vol.7, 15th Edition 330, 'fish' is described as 'avariety of cold blooded aquatic vertebrate of several evolutionarylines'. In the World Book of Encyclopaedia Vol VII 1977 Edition atpage 138) 'fish' is described as 'vertebrates that live in water'.In Concise Oxford Dictionary, 'fish' is described as 'vertebratescold blooded animal, living in the water, having gills, through outlife'. 29. Webster's Encyclopedic Unabridged Dictionary of theEnglish Language defines fish as ---1. any of various cold blooded, completely aquaticvertebrates, having gills, commonly fins and typically anelongated body usually covered with scales.2. any of various other aquatic animals.3. the flesh of fishes used as food.In the same dictionary, the meaning of Prawn is found to be -- anyof various shrimplike decapod crustaceans of the general palaemon,penaeus, etc., certain of which are used as food. The OxfordEnglish Dictionary Vol IV, 1978 gives the meaning of fish asunder :"In popular language, any animal living exclusively in thewater; primarily denoting vertebrate animals provided withfins and destitute of limbs; but extended to include variouscetaceans, crustaceans, molluscs, etc. In modern scientificlanguage (to which popular usage now tends to approximate)restricted to a class of vertebrate animals provided with https://hcservices.ecourts.gov.in/hcservices/ gills throughout life and cold-blooded."30.The Chambers Dictionary of Science & Technology (2nd Reprintof 1st edition) in its Appendix has furnished the Classification ofthe Animal kingdom. The relevant portion of that classificationread as under :Classification of the animal kingdomPhylumSub-phylum super class class sub-classArthropodaOnychophoraTardigradaPentastomidaTrilobitomorphia----------------------------------------------------------ChelicerataMerostomataArachnida-----------------------------------------------------------MandibulataCrustaceaPauropodaDiplopodaChilopodaSymphyla----------------------------------------InsectaApterygotaExopterygotaEndopterygotaChordataHemichordataEnteropneustaUrochordataCephalochordataVertebrataAgnathaGnathostomataChondricythyesOsteichthyesAmphibiaReptiliaAves, Mamalia From this, it is evident that Crustaceans are found under the subphylum of mandibulata and phylum of Arthropoda. Shrimp is smallerin 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 denotedprimarily as vertebrates with fins and destitute of limbs, butextended to include cetaceans, crustaceans, molluscs, etc.,lastly, it was found noted, 'but in the modern scientific language,it was restricted to vertebrates provided with gills throughout thelife and cold blooded.'32. The common parlance distinction between 'fish' and'prawn/shrimp' supported by the dictionary meaning and theBiological differences stated above make it clear that though fishand prawn/shrimp are aquatic animals, they are different from each https://hcservices.ecourts.gov.in/hcservices/ other. The commercial parlance as well as biologicalclassification, as extracted above, show that fish (vertebrata) isconspicuously different from prawn/shrimp (crustaceans). 33. In addition to that, before the Tribunal, volumes ofopinions about the biological difference between fish and shrimpswere made available. A Professor from the Agricultural Universityhas given opinion to the effect that fishes are cold blooded,aquatic, vertebrates of super class pisces under the phylum,chordata, whereas shrimps are aquatic crustaceans, belonging to thelarge class of crusacea under the phylum arthropoda. Shrimps areinvertebrates. The body of fish is covered by dermal scales butthat of a shrimp is covered by chitinous exoskeleton. In fish,blood is red-coloured and contains haemoglobin, while in shrimp, itis colourless, thin, watery fluid. The digestive system in fish iscoiled and fully developed with different regions like stomach,small intestine, large intestine, etc., and associated glands likeliver, pancreas, etc., In shrimp, digestive system is straightwith just one digestive gland, viz., hepatopancreas. It appearsthat the expert opinion is akin to the dictionary meaningsextracted above. 34. Further, to find out as to how a product or good or athing has been understood by the Legislature, or in order to findout the intention of the legislature, there is no harm nor taboo toconsider the way in which the same good has been dealt with by theLegislature in some other enactment. The Agricultural Produce CessAct, which is the subject matter in this case, is a central Actenacted by the Central Government for the purpose of making betterfinancial provision for the carrying out by the Indian Council ofAgricultural Research of the objects for which it was established.Another central enactment, which provided for establishment of astatutory authority to sort out the problems faced by the marineproduct industry, enacted by the Central Government is the MarineProducts Export Development Authority Act, 1972 (Act 13 of 1972),in which 'marine product' has been defined as follows :"marine products" includes all varieties of fisheryproducts known commercially as shrimp, prawn, lobster,crab, fish, shell-fish, other aquatic animals or plants orparts thereof and any other products which the Authoritymay, by notification in the Gazette of India, declare to bemarine products for the purposes of this Act".The said definition has been taken in aid to find out the intentionof the legislature vis-a-vis, the term 'fish' by the Tribunal. TheTribunal found that the definition of the word 'marine products' inthat Central Act, though inclusive of shrimp, prawn, lobsters,etc., but, shrimp, prawn, lobster and fish are stated separately.The fact that shrimps/prawn and fish are stated as differentmarine products, show that the shrimp, prawn and fish were known asdifferent items in commercial parlance. Like that the Tribunalalso took the clue from the Customs Tariff Act, 1975 wherein also https://hcservices.ecourts.gov.in/hcservices/ fish has been classified under different heading thanshrimps/prawns, which has been classified in yet another heading. 35. From the whole lot of materials available, the one andonly conclusion that can be arrived at is that the expression'fish' found as item No.7 in the Schedule to the AgriculturalProduce Cess Act, 1940, does not include within itself prawns andshrimps.36. We can also take support from the decision of the OrissaHigh Court in the case of State of Orissa v. CI Foods Limited,(1982) 50 STC 152, wherein a Division Bench has found thatbiologically, 'fish' and 'prawn' are two different classifications,and qualitatively, 'fish' and 'prawn' are two differentcommodities and on the evidence placed, even in the commonparlance, they were understood as two different items. There wasno scope for one item to pass for the other. The said decision ofthe Orissa High Court was followed by another Division Bench of thesame High Court in the case of the same assessee, reported in 68STC 284.37. The Kerala High Court while answering the question as towhether 'cuttlefish' is a variety of 'fish', or not, afterreferring to various technical meanings, in the case of SunbayFood Corporation v. State of Kerala, (1986) 63 STC 270, hasobserved as under :"Thus, the poignant feature of 'cuttle-fish' is that it is anon-vertebrate. Prawns and lobsters are also non-vertebrates. Even the Act does not include prawns andlobsters in the category of fish, as they have been madetaxable items. There is no dispute about it.The conclusion to be drawn from the above discussion isthat 'cuttlefish' cannot be treated as a fish variety. Itis hence not an exempted item."38. The finding of the above case is also yet another supportto the conclusion we arrived at. The ultimate conclusion arrivedat by the Division Bench was 'cuttlefish' is a non-vertebrate andhence not a 'fish'. In this case, prawns/shrimps are also nonvertebrates and hence, they are different from fish, which is avertebrate. 39. The Andhra Pradesh High Court in the case of T.B.R.Exports(Madras) v. State of Andhra Pradesh, 116 STC 257, after referringto 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 rivalcontentions, we have reached the conclusion that it is notpossible to agree with the contentions canvassed by thelearned counsel for the petitioner-assessee, for obviousreasons while applying a common parlance test it cannot be https://hcservices.ecourts.gov.in/hcservices/ seriously contended that fish and prawns are one and thesame commodity. If a lay man were to ask for fish in themarket and if prawn is provided he would promptly refuse itand vice versa. Fish and prawns are separate commodities asunderstood in commercial world." 40. Hence, the second substantial question of law is answeredin favour of the assessee by holding that the expression 'fish'contained in Schedule 7 to the Agricultural Produce Cess Act, 1940would not include within itself prawns and shrimps.41. Mr.Joseph Vellapally, sought to take assistance from thejudgment of the Supreme Court in the case of Collector of Customs,Bombay v. Swastic Woolens (P) Ltd., 1988 (Supp) SCC 796 to contendthat the question as to whether 'fish' would includeprawns/shrimps, is a question of fact, when the Tribunal and theauthorities below have held that they are two different commoditiesunder section 130 of the Customs Act, an appeal which involves asubstantial question of law, can alone be entertained and the issuebeing question of fact, the Court need not interfere with thefinding arrived at by the ultimate fact finding authority. 42. In that case before the Apex Court, an importer whoimported consignment of wool materials, claimed that it as woolwaste and hence not liable for customs duty as per a Notification.The department was of the opinion that what was imported was notwool waste, but wool sleeve and imposed duty. The experts gave areport that it was not possible to give an opinion by visualobservations of the material and that there was no specificationlaid down for the same by the ISI or International StandardOrganisation. In those circumstances of the case, the Tribunalnoted that the question would have to be understood on the basis ofthe trade understanding. Thus, the question involved in that casewas whether the goods imported is woollen waste or woollen sleeve,that is a question of fact. But in the present case, the questionwhether the expression 'fish' includes prawns/'shrimps' cannot beregarded as question of fact, but can only be regarded as an issueinvolving interpretation of an entry, which can be regarded as aquestion of law. 43. For the discussion above made, the appeals are dismissed.However, there is no order as to costs. The connectedmiscellaneous petitions are consequently dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mf https://hcservices.ecourts.gov.in/hcservices/ To1. The Commissioner of Customs,Custom House, New Harbour Estate,Tuticorin 628 004.2. The Commissioner of CustomsPort ExportCustoms House, Chennai3. The Registrar,The Customs, Excise and ServiceTax Appellate Tribunal,South Zonal Bench, Shastri Bhavan Annexe,Haddows Road, Chennai 6.2 ccs to Mr.T.S. Sivagnanam, SCCG, SR. 3473110 ccs to Mr.R. Ashokan, SR. 35362C M A Nos.212 to 223 of 2007and 2370 to 2394 of 2007kk,km,sra,gkg 5/8