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TMI Blog2015 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in favour of assessee in Final Order No.951-988/2005 dt. 8.7.2005 holding that in the absence of any intention of legislature to the contrary "shrimp" cannot be treated as "fish" by any stretch of imagination. There was no definition of "fish" in the Schedule appearing under Agricultural Produce CESS Act, 1940. This view of the Tribunal was upheld by the Hon'ble High Court of Madras in C.M.A.No.212/2007 and others disposed by a judgement dt. 4.7.2008 as reported in 2008 (230) ELT 225 (Mad.) By this judgement, there shall not be liability of the appellant at all whereas the department has in sequence held against the appellant and fastened with liability of Cess. (2) The above judgement of the Hon'ble High Court of Madras wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill claim should have been made against each such bill duly. But when law was settled holding no levy of Cess, State cannot be enriched at the cost of the appellant without refund of the cess realised. 2. Ld. counsel explained the history of the case stating that in the year 1999 when it suffered against a shipping bill of that year instead of approaching to the executive machinery it went in writ petition to the Hon'ble High Court of Madras in W.P.No.20123/1998 which was disposed on 20.9.2003. The Hon'ble High Court while disposing the writ petition, directed the appellant to approach the executive machinery to pursue its claim. The lower appellate authority allowed the claim. But Revenue being aggrieved came to the Tribunal. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve writ petition came on 20.9.2003. By that time, appellant was under bonafide belief that its entire claim for the shipment of the prawn/shrimps made during the period 2000-01 to 2004-05 shall not be exigible to CESS. Therefore after decision in writ petition, refund in respect of 513 shipping bills was claimed. 6. On the aforesaid premise, it is submission of the counsel that order of the learned Commissioner (Appeals) is unsustainable even following the apex court judgement in the case of Priya Blue Industries (supra) when appellant had no scope to know what was the law on the subject. 7. Revenue on the other hand says that it has gone in appeal before the apex court against judgement of Hon'ble High Court of Madras as reported afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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