9911796707
TMI Blog1999 (12) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... ess Act, 1985 at the rate of 0.5% Adv. for the period from 1-1-1993 to 31-5-1995. The Order-in-Appeal No. 91/94, dated 20-12-1994 had set aside the Order-in-Original and allowed the present respondents appeal on the ground that mushrooms are different from vegetables and therefore the said CESS which is applicable only to vegetables is not leviable thereon. The Order-in-Original confirmed the demand of Rs. 3,25,521/- raised under show cause notice, dated 11-5-93 on account of such CESS leviable on the ground that Chapter 7 of the Customs Tariff specifically includes edible vegetables in the category of vegetables. 2. Revenue prays for restoration of the Order-in-Original by setting aside the Order-in-Appeal impugned. 3. Ld. DR s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Heading 2003.10, as mushrooms preserved otherwise than by vinegar or acetic acid. He further submits that therefore mushrooms would be classifiable as vegetables and those exported by the respondents would fall under the above classification. (f) He submits that reference to other statutes for this purpose would be illconceived in view of clear provisions in the said CESS Act that it would be collected as duties of Customs. (g) Finally, he also submits that even in Trade Parlance, mushrooms are known and consumed as vegetables by vegetarians and are sold as vegetables in all major vegetable shops. 4. Learned Consultant for respondents on the other hand submits that mush ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these mushrooms were not subject to any processes which made preparations out of them and mushrooms remained mushrooms when exported. Therefore, Chapter 20 would not be applicable. (g) Finally, he submitted that these mushrooms are not sold in normal vegetable shops as they are regarded as different from normal vegetables in the trade. Learned Consultant, therefore, submitted that the Order-in-Appeal impugned be upheld. 5. We have carefully considered these submissions and records of the case and find considerable force in the arguments of ld. DR for the following reasons :- (1) In the said CESS Act, under which the CESS is levied, it has been clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above statutory provisions, it is immaterial as to whether the mushrooms belong to Fungus category or that they are not sold as vegetables in the market. When the statute clearly provides that mushrooms would be regarded as vegetables under Chapter 7 and when they have been preserved as discussed above, therefore they would rightly be classified under Chapter 20 as proposed in the show cause notice and as upheld in the Order-in-Original. We are also unable to accept ld. Consultant's submission that the term "vegetable" should be considered in the light of the judgment cited and noted above. That judgment was in the context of another statute and therefore cannot be applied in this case. 7. In view of the aforesaid analysis and fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
