ORDER
M.S. Liberhan, CJ
1. These writ petitions are disposed of by this common order.
2. The petitioners are exporting processed or frozen prawns and shrimps. Under the Agricultural Produce Cess Act, 1940, (hereinafter referred to as 'the Act') cess at the rate of 0.5% on agricultural products given in the Schedule was imposed. Cess is to provide financial assistance to the Indian Council of Agricultural Research, who undertakes the research on agricultural products. It is imposed on the value of export of the agricultural products. In the itinerary of items in Schedule, 'Fish' is subject to cess. The petitioners challenged the levy of cess, inter alia, contending : Since prawn is not a fish; consequently not liable for cess. No cess can be recovered by the respondents on prawns, having not been provided by legislation.
3. The learned Counsel for the Union of India contended : The word 'fish' is used in broad term. It would include aquatic animals like crab, prawns, etc.Prawns are liable to cess. The prawns are exported after removal of head and legs without any process carried out. Secondly, the petitioners be relegated to an alternative remedy. The revenue authorities can be in better position to determine whether prawns are fish and covered under the Schedule or a particular product would fall under which particular entry in Schedule. Reference was made to dictionary meaning of the shell fish as well as fish defined in Law of Lexicon.
4. The learned Counsel relied on the decisions reported in Assl. Commissioner of Sales Tax, Kerala v. P. Kesavan & Co., (1996) 81 ELT 7, Indian Cable Company Ltd., Calcutta v. Collector of Central Excise, Calcutta, : 1994ECR20(SC) , Ms. D.H. Brothers Pvt. Ltd. v. Commissioner of Sales Tax, U.P., Lucknow, : [1991]3SCR423 , Asian Paints India Ltd., v. Collector, (1988) 35 ELT 3, Indo-China Steam Navigation Co., v. Jasjit Singh, : 1964CriLJ234 , Hindustan Aluminium Corporation Ltd v. Superin-tendent, Central Excise, Mirzapur & others, (1981) 8 ELT 642 (Del.) and Commissioner of Wealth Tax v. Hashmat-unnissa Begum, (1989) 40 ELT 239.
5. The learned Counsel for the petitioners contended that cess is leviable under Section 3 of the Act which provides that customs duty at the rate of one-half of one per cent ad valorem shall be levied on all articles included in the Schedule, and which are exported from India, with an exception with respect to the articles not produced in India. Twenty one articles are enumerated in Schedule. The relevant item under consideration in the Schedule is item No.7, which runs as under :
'7. Fish.'
6. The learned Counsel for the petitioners contends that prawns are not fish as understood in the common parlance known to the trade or to the common man, who is expected to follow the law. The words in a fiscal statute cannot be given an extended meaning.
7. The learned Counsel for the petitioners relied on the decisions reported in State of Orissa v. C.I. Foods Limited, (1982)50 STC 152, C.I. Foods Limited v. State of Orissa, (1988) 68 STC 284 and T.B.R. Exports v. State of A.P., 1994 (1) An.WR 306.
8. The Legislatures with an intent to provide financial aid to the agricultural research provided for the levy of cess only on the scheduled items. Custom authorities have been authorised to collect the cess. Some is required to be paid to the Agricultural Research Institute.
9. Conspectus of law from the judgments cited by the learned Counsel for the petitioners emerges :
(1) That the entries in the Schedule in a fiscal statute should be construed in a popular sense, not according to scientific or technical meaning and it is commercial meaning which has to be given to the expression ;
(2) Where two meanings are possible, one which advances the legislative intention should be accepted;
(3) Views supporting the constitutionality should be accepted;
(4) That though the revenue authorities are in a better position to appreciate in view of the evidence produced that the article falls under the specified item in the Schedule, yet it was observed, that question, where sufficient evidence is placed in a writ for unambiguous conclusion upon technical matters to be reached by the authorities can be reached in exercise of the writ jurisdiction;
(5) Everyday use should be understood in common parlance or in the commercial world or in trade circle and should be given a popular meaning which should prevail over a technical meaning;
(6) Intended meaning to be given to a word as intended by the Legislature; consequently, definition or meaning of it, as provided in dictionary or zoologyshould not be imported in the fiscal statute.
10. It is well established principle of interpretation of statutes that nothing has to be read in or nothing has to be implied and one has to look fairly at the language used and levy can be imposed if it strictly falls within the provisions of the law. (Reference may be made to 1936 Appeal Cases 1 and 1946 Appeal Cases 119 at 140). Courts would not create ambiguity by interpretation in order to enable the State to levy cess. No benevolent construction in favour of a State can be put on a fiscal statute by hair-splitting.
11. It emerges from the judgments cited by the learned Counsel for the petitioners that prawns and fish are two different commodities with biologically different classification. Both are qualitatively different. In common parlance too, fish and prawns as known to persons dealing in fish or prawns either in business or for personal consumption are two different items. Where specific named product is included in a Schedule with identity distinct from corpus it came from, no other form can be given a name as given in Schedule. Schedule is not meant to be filled by inferences.
12. It is well established principle of law that subject cannot be taxed or levied with the cess, unless the charging provision clearly imposed an obligation on the assessee. If the meaning of the legislation is clear, the Courts ordinarily would not, by its ingenuity or by articulation, give meaning to the plain word of the legislation and then take-in or out an item specified in the Schedule from the purview of levy. Law with respect of levy has to go be considered as its understood by a common man in common parlance known in the commercial world or the word used in day to day use by a common man within the Indian conditions. No dictionary meaning or technical meaning or biological or structural or genetic meaning can be imported into the word defining an item leviable for cess in the Schedule. It is thebasic principle of applicability of a fiscal legislation, that a person could be taxed only if one conies under the letter of the law and not otherwise i.e., howsoever just apparently it may appear to fall within the spirit of law, tax or cess cannot be levied or imposed without there being specific words clearly showing the levy by the legislation. Levy cannot be supported relying on the spirit of law by the Department. There is no scope for levy by intendment or presumption or by interpretative process or implied levy by process of reading into the plain words. One has to look into the letter of the word subject to levy. Beliefs and assumptions that it included the zoological meaning or genetic affinity cannot be imported into the Schedule for the purposes of levy.
13. There can be no gain-saying that judicial notice can be taken of a fact that a common man treats fish and prawns as two different articles, like wheat or bajra, though both are agricultural produce and may be genetically or zoologically same. It is difficult to assume that a man, not conversant with the dictionary meaning or the zoological meaning or scientific meaning or genetic meaning for whom the law is meant to be followed, would treat the prawn as a fish and on demand by a person, prawn will be supplied with fish and vice-versa.
14. In our considered view, the question of putting a meaning of a fish only would arise if the word 'fish' is capable of two meanings or any implied inclusive meaning or legislature intended. No process is involved to which prawn can be converted into a fish.
15. We are fully in agreement with the judgment rendered in T.B.R. Exports' case (supra) by a Division Bench of this Court wherein it was held that prawns are different articles from fish drawing support from the judgments in C.I. Foods' case (supra) and C.I. Foods' case (supra) holding that qualitatively prawns and fish are two different commodities. An attemptwas made by the learned Counsel for the respondent-Union of India that the prawns and fish were found to be two different commodities, both qualitatively and in common parlance only under the sales tax where the incident of tax is the sale or purchase of a commercial item by a citizen and not under the Agricultural Produce Act, which subjects Agricultural produce exported and incidence of cess is the source of production and its export. Distinguishing feature put-forth by the Counsel for Union of India, in our considered view is immaterial, and being not substantial, is of no consequences. Question under consideration is whether in the item defined fish, could prawn be included and subjected to tax under the Sales-tax Act. Levy under any other statutory provision or incidence of levy in the facts of circumstance cannot alter the meaning of item on which cess is levied.
16. It is one of the cherished objects of the law that the multiplicity of the proceedings should be avoided. Even in the judgment relied on by the learned Counsel for the respondents in order to support his submission that the matter be relegated to the Department, which can better appreciate whether prawns fall within the scheduled item of fish or not, in P. Kesavan & Co. 's case (supra) though it was observed in the facts and circumstances of that case where the question involved was whether an item of strapping, which was subject to sales tax involved any process or inputs putting therein. It was in that context, it was observed that where technical matters are involved in respect of process of manufacturing and there was no evidence before the Court with respect to the process and the inputs in order to come to conclusion that a particular item has been produced by a particular process with a particular input that the matter was relegated to the authority. Yet, we may hasten to add that the Hon'ble Supreme Court was categorical, and observed.
'Where sufficient evidence is placed before the Writ Court of an unambiguousconclusion upon technical matters to be reached by the authorities, the Court in exercise of its jurisdiction can come to such a conclusion and not relegate the parties to an alternative remedy before the Department.'
17. It is one of the principles that in taxing statutes, substance of the matter should be looked into and the doctrine is to give a quietus at the earliest in tax matters as uncertainty breeds the cord of untrammelled discretion.
18. Here, there is no question of any process involved, much less technical process or the inputs put in from which the prawns can be converted into fish known. in the commercial sense, specially merely by chopping of the head, prawns cannot be said to have become fish. It is not the substance of the material which has been subjected to levy of fee, but it is an item or a thing known by particular name/.e., fish, which has been subjected to levy of cess. By no stretch of imagination or by adopting bionomial theorem, fish can be termed to be prawn. No interpretation is possible by reading the scheme of the Act or the Schedule that the word fish would include prawn. Prawn does not tally with fish. It may be acqua-culture agricultural produce. But, different produces having been produced by the same methodology will not engulf within the meaning of one word i.e., fish. There is nothing suggested which could persuade us to take a view that in the facts and circumstances of this case any other meaning can be given to the fish appearing in the Schedule.
19. For the reasons recorded above, prawns cannot be subjected to cess, unless specifically provided by the legislation. The respondents cannot add or subtract or legislate in the absence of any specific legislation imposing cess on the prawns.
20. In view of the observation made above, levying of cess on prawns is quashed and the respondents are injuncted from collecting cess on prawns till a legislationappropriately, in the context of law, levies cess on prawns. The writ petitions are allowed. No order as to costs.