2008 (7) TMI 117 - HC - Customs

Whether Prawn and Shrimps to be considered as Fish for levy of export cess under Section 3 of Agricultural Produce Cess Act, 1940 expression Fish found as item no. 7 not includes Prawns/Shrimps - as per common parlance test, dictionary meanings expert opinions, Prawns and Shrimps are not same as Fish impugned question cannot be regarded as question of fact, but can only be regarded as an issue involving interpretation of an entry, which can be regarded as a question of law

Issues Involved:
1. Maintainability of the appeal under Section 130 of the Customs Act.
2. Whether the term 'fish' in Item No. 7 of the Schedule to the Agricultural Produce Cess Act, 1940 includes prawns/shrimps.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal under Section 130 of the Customs Act:

The court first addressed the maintainability of the appeal under Section 130 of the Customs Act. The respondent/exporters argued that the appeal was not maintainable as it related to the classification of goods for assessment purposes, which is excluded from appeals under Section 130. However, the court disagreed, referencing the Supreme Court's decision in Naveen Chemicals Mfg. And Trading Co. Ltd. v. Collector of Customs, which established a test for determining the maintainability of such appeals. The test is whether the question has a direct and proximate relation to the rate of duty or value of the goods for assessment purposes. The court concluded that the appeal was maintainable as the issue did not directly relate to the rate of duty or value of the goods but rather to the classification of prawns/shrimps under the term 'fish' in the Agricultural Produce Cess Act.

2. Interpretation of the Term 'Fish' in Item No. 7 of the Schedule to the Agricultural Produce Cess Act, 1940:

The primary issue was whether prawns/shrimps fall under the term 'fish' as per Item No. 7 in the Schedule to the Agricultural Produce Cess Act, 1940. The court examined various definitions and interpretations from different statutes and dictionaries. The Additional Solicitor General argued that 'fish' should include all marine products, including prawns/shrimps, citing definitions from the Indian Fisheries Act, Marine Zones of India Act, FAO Yearbook, and other sources.

Conversely, the respondents contended that in the absence of a specific definition in the Agricultural Produce Cess Act, the term 'fish' should be interpreted using the common parlance theory. They argued that in common and commercial usage, 'fish' and 'prawns/shrimps' are distinct. The court agreed with this view, noting that if the legislature intended to include all marine products, it would have used a broader term like 'all aquatic animals' instead of 'fish.'

The court also referenced various judicial precedents, including decisions from the Orissa High Court, Kerala High Court, and Andhra Pradesh High Court, which supported the distinction between 'fish' and 'prawns/shrimps' in common parlance and commercial usage. Additionally, the court emphasized the importance of interpreting fiscal statutes based on the plain and unambiguous language of the law, without adding or substituting words to extend the statute's scope.

The court concluded that the term 'fish' in Item No. 7 of the Schedule to the Agricultural Produce Cess Act, 1940 does not include prawns/shrimps. This interpretation aligns with the common parlance, commercial understanding, and biological classification, which distinguish fish (vertebrates) from prawns/shrimps (crustaceans).

Conclusion:

The court dismissed the appeals, affirming that the term 'fish' in the Agricultural Produce Cess Act, 1940 does not encompass prawns/shrimps. The appeal was deemed maintainable, but the substantive issue was resolved in favor of the respondents, confirming that prawns/shrimps are not subject to cess under the term 'fish' in the Act.

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