K. Raviraja Pandian, J.
1. 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, 08th July, 2005 made in Final Orders Nos. 951 to 988 of 2005 whereby and wherein the Tribunal has rendered a finding that the exports of shrimps/prawn made by the Respondents were not exigible to levy of cess under Section 3 of the Agricultural Produce Cess Act, 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 of Agricultural Produce Cess Act, 1940. The common questions of law that have arisen out of the Order of the Tribunal for the decision of this Court in all these cases, as framed at the stage of admission, are:
1. Whether the Tribunal failed to consider that the provision of the Customs Act or the explanatory notes on the Harmonised systems of Nomenclature (HSN) cannot be relied upon to determine the scope of the various entries under the Schedule of the Agricultural Produce Cess Act, 1940?
2.Whether the Tribunal is right in not considering the issues that there cannot be any distinction with regard to definition and classification of fish and prawns/shrimps under the provisions of the Customs Tariff Act, 1975, the Agricultural Produce Act, 1940 and the Marine Products Export Development Authority Act?
2. As the facts in all these cases are similar, for the sake of convenience, the appeal in C.M.A. No. 212 of 2007 is taken as a typical case and the facts of that case are dealt with herein.
3. The Agricultural Produce Cess Act, 1940 was enacted to make better financial provision for the carrying out by the Indian Council of Agricultural Research of the objects for which it was established and for that purpose to impose on certain Articles a cess by way of Customs Duty on export, the proceeds whereof to be paid to the said Council.
4. Section 3 of the said Act imposes cess at the rate of one half of one per cent ad valorem on all Articles included in the schedule which are exported from India. Section 5A of the Act makes the provisions of the Customs Act 1962 and the Rules and Regulations made thereunder applicable in relation to the levy and collection of the cess on all the Articles included in the schedule as they apply in relation to the levy and collection of Customs Duty. 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 exported prawn/shrimps. On such export, cess was levied by the Assistant Commissioner of Customs. The exporter filed Writ Petition No. 15565 to 15568 of 1999 to restrain the Assistant Commissioner from levying and collecting cess under the Agricultural Produce Cess Act, 1940 on export of prawns/shrimps. The Writ Petition was disposed of with the direction to the exporter to file appeals under the provisions of the Customs Act before the Commissioner for resolution of the lis on merits. Accordingly, the exporters preferred appeal before the Commissioner of Customs and Central Excise (Appeals I) against the Order of levying cess on assessment of shipping bill of 5753/27th August, 1999. The Commissioner, by his Order, dated, 29th March, 2004 observed thus:
From the above discussion I observe that the taxing statute, namely, the Agricultural Produce Cess Act has not defined the product 'fish'. However, the Marine Product Export Development Authority Act, 1972, which is also the taxing statute defines 'fish' and shrimps/prawns as different product. Therefore, it is observed that there seems to be confusion as to whether the fish will include shrimps/prawns. It is not explicitly defined under the Agricultural Produce Cess Act, whereas the Customs Tariff Act, Harmonised Commodity Description and Coding System, the Marine Products Export Development Authority Act, 1972 classify the fish and prawn/shrimps as different products. In view of the legal position and duly following the above cited case laws, the benefit of doubt has to be given to the Appellants by not charging the cess under the Agricultural Produce Cess Act, 1940. Accordingly, the appeal is allowed with the consequential relief.
6. The Commissioner of Customs carried the matter on appeal to the CESTAT, South zone Bench at Chennai. The Tribunal, in its common Order, dated, 08th July, 2005 held as follows:
For the reasons stated we hold that the export of shrimp/prawn made by the Respondents were not exigible to levy of cess under Section 3 of the Agricultural Produce Cess Act, 1940. The lower Appellate Authorities were giving the benefit of doubt to the Assessee as they could not reach a finding with certainty that shrimp/prawn was different from fish. Beyond doubt, we hold that prawn and shrimps are different from fish for the purpose of the Agricultural Produce Cess Act, 1940 and we sustain the impugned Order after removing the doubt. In the result, the appeal stands dismissed.
7. Learned Additional Solicitor General contended that under the scheme of the Agricultural Produce Cess Act, 1940, the Articles shown in the schedule to the Act, are descriptive whereas the schedule to the Customs Tariff Act is classificatory. Hence, the provision of the Customs Tariff Act or the explanatory notes on the Harmonious Systems of Nomenclature should not have been relied upon to determine the scope of the various entries under the schedule to the Agricultural Produce Cess Act, 1940. According to him, the term 'fish' includes within itself all marine products. In Order to substantiate his case, he brought to our notice the definition contained 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 of fishing by Foreign Vessels) Act, 1981. Section 2 of the said Act provides that-
In this Act, unless the context otherwise requires,
(b) fish means any aquatic animal, whether piscine or not, and includes shell fish, crustacean, molluscs, turtle (chelonia), aquatic mammal (the young, fry eggs and spawn thereof) holothurians, coelenterates, sea weed, coral (porifera and any other aquatic life.
9. In Order to amplify his arguments, he brought to our notice the divisions and group of fishes stated in the FAO Year book, 1998, wherein under Code No. 4 Crustaceans, shrimps and prawns were shown as group of species. By quoting this the learned Additional Solicitor General contended that when shrimps/ prawns were regarded as 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 the species of crustaceans, should be regarded as one coming within the expression 'fish' enlisted in the Schedule to the Act.
10. He further relied on the FAO Technical Guidelines for Fisheries Management in which the term 'fish' has been defined as follows:
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 water primarily denoting animals provided with fins and destitute of limbs, but extended to include various crustaceans, octaceans, molluscs, etc. -- Oxford English Dictionary Vol IV, 1978.
(5) A name loosely applied in popular usage to many animals of diverse characteristics, living in the water # Webster 1913 Dictionary.
11. He also relied on Elsevier's Dictionary of Fisheries complied by P.E.Eapen, in which fish has been defined to mean the cold blooded animals typically with backbone, gills, and fins and primarily depended on water as medium to live and breath with gills.
12. Per contra, Mr. Joseph Vellapally, learned Senior Counsel appearing for the exporters contended that the appeal filed under Section 130 of the Customs Act is not maintainable as the issue to be decided is one of classification of the goods for the purpose of assessment. Section 130 of the Customs Act provides for an appeal to the High Court, but specifically excludes the appeal from an Order relating to the determination of the question, having a relation to the rate of duty of customs or to the value of goods, for the purposes of assessment. This appeal having a relation to the rate of duty of customs cannot be maintained.
13. On merits he contended that the term 'fish' stated in the schedule to the Agricultural Produce Cess Act, 1940, in the absence of any definition in that Act, has to be construed by applying the common parlance theory. The question as to whether the expression 'fish' includes prawns/shrimps is a question of fact. When the question of fact has been decided by the Authorities under the Act as well as the Tribunal, the Court shall not interfere with such a finding of fact of the Tribunal arrived at bona fide while exercising the jurisdiction under Section 130 of the Customs Act,
14. Mr. C.Natarajan, learned Senior Counsel appearing for the Appellant argued in line with the arguments made by Mr. Joseph Vellapally.
15. In reply to the said arguments, the learned Additional Solicitor General contended that the Legislature, during the time of enacting Agricultural Produce Cess Act, 1940 did not think to define the term 'fish' or any other term contained in the schedule. In such circumstances, the object of the Act must be taken into consideration, while deciding whether an item enumerated in the Schedule should encompass within it the other items also. As the object is to make financial provisions for the carrying out the object by the Indian Council of Agricultural Research, the terminology 'fish' has to be determined in a wider manner to include prawns/shrimps also.
16. Heard the learned Counsel on either side and perused the materials available on record, perused the questions of law formulated at the time of admission. From the above narrated facts and the arguments by either of the parties, the following points arise for consideration:
1.Whether, an appeal under Section 130 of the Customs Act is maintainable before this Court, having regard to the dispute to be resolved in this appeal?
2. Whether on the facts and circumstances of the case, the expression 'fish' stated as item No. 7 to the schedule to the Act, 1940 would include within itself prawns/ shrimps?
The questions of law formulated at the time of admission are modified as above.
17. We will now deal with the first question of law regarding the maintainability of the appeal before this Court. We are not able to concur with the learned Counsel for the Respondent/exporters that the appeal is not maintainable in view of the fact that the determination of question involved in these cases does not have a relation to the rate of duty or value of the goods for the purpose of assessment. The very Section has been the subject matter of consideration by the Supreme Court in the case of Naveen Chemicals Mfg. And Trading Co. Ltd. v. Collector of Customs : 1993ECR1(SC) . Though in that Judgment, much was concentrated on Section 129(c) of the Customs Act, reference has also been made to Section 130 of the Act and ultimately the Supreme Court has evolved a test for the purpose of determining the question.
18. To put it in the words of the Supreme Court, the test is as follows:
This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods.
While thus holding, the Apex Court dismissed the Civil Appeal by observing thus:
Strictly speaking, on the interpretation that we have placed upon the said expression, this appeal would not lie from the impugned Order of CEGAT to the Supreme Court. But we do not propose to dismiss it on that ground. We dismiss it on the ground that the Appellants were in error in contending that their appeal before CEGAT ought to have been heard by a Special Bench and could not have been heard and decided by a member of CEGAT, sitting singly.
19. In the above stated observations, the terms 'Reference by CEGAT lies to the High Court' can be read as appeal to the High Court from the Order of the CEGAT. After evolving the test as above with reference to the facts of that case wherein the goods imported under licence as crude emitine was found to contain emitine hydrochloride, which is not permitted to import under the licence, were confiscated and allowed the importer to clear the same on payment of redemption fine. The Supreme Court observed that the Order of the Additional Collector under appeal before CEGAT in that case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collector#s Order did was to confiscate the said goods allowing to the Appellant the option of redeeming them upon payment of a fine of Rs 10,000. That the Appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down.
20. The principle laid down in that case squarely applies to the facts of the case. Hence, the first question as to the maintainability of the appeal is answered in the affirmative, in the sense, the appeal is maintainable.
21. As regards, the second question of law, we are not able to accept the argument of the learned Additional Solicitor General that 'fish' includes molluscs and crustaceans and as such, the crustaceans would otherwise mean and include prawns/shrimps and hence, prawns and shrimps should be regarded as 'fish' for the purposes of assessment and such meaning should be given to the expression 'fish' incorporated as item No. 7 to the Schedule to the Act. If that be the intention of the lawmakers, then it would have been very easy for them to describe the expression 'all aquatic animals' or 'all marine products', instead of 'fish' in item No. 7 of the Act, 1940. But, it is not so, the item No. 7 in the schedule to the Act sets out only 'fish'.
22. How to interpret the provisions or the entries contained in the Schedule to the fiscal statutes has been repeatedly explained by the Apex Court in catena of decisions. The uniform opinion of the Supreme Court, in all those cases, run as follows:
No words or expression used in any statute can be stated to be redundant or superfluous. In matters of interpretation, one should not concentrate too much on one word and pay too little attention to other words. Every provision or every word must be looked at generally and the context in which it is used and not in isolation. The elementary principle of interpreting any word while considering a statute is togather the mens and sententia legis of the legislature. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided.
23. As stated by the Privy Council, in the case of Crawford v. Spooner (1846) 6 Moore PC 1, 'We cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there. In case of an ordinary word, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary to deciding the particular case. See: Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. v. Custodian of Vested Forests : [1990]2SCR401 ; Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96; Istitute of Chartered Accountants of India v. Price Waterhouse : (1997)6SCC312 ; Hrbhajan Singh v. Press Council of India : [2002]2SCR369 and Grasim Industries Ltd. v. Collector of Customs Bombay : 2002(141)ELT593(SC) .
24. The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not flow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law, i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter. See: Mathuram Agrawal v. State of M.P. : AIR2000SC109 : : AIR2000SC109 ; Bank of Chettinad Ltd. v. CIT (1940) 8 ITR 522 ; IRC v. Duke of Westminister 1936 AC 1; Parrington v. Attorney General (1869) 4 HL 100; Russel (Inspector of taxes) v. Scoot (1948) 2 All E. R. 1.
25.Having in mind the above said well established legal principle, we will have to see whether 'fish', found as the 7th item in the schedule to the Agricultural Produce Cess Act, would include within itself prawns/shrimps also.
26. It is an admitted fact that the word 'fish' has not been defined in the Act itself. In the absence of the definition, rule of interpretation is that particular words used by the legislature in the denomination of Articles or goods should be understood according to the common or commercial understanding of the term used, for the Legislature does not suppose our merchants to be naturalists or geologists or biologists and thus resort should be made to understand the popular meaning or the meaning attached to them by finding out as to how those goods were understood by those dealing with them, that is to say, to their commercial sense. See: Mathuram Agrawal v. State of M.P. : AIR2000SC109 .
27. The fish and prawns are delicacies in the South India. If the common parlance test is applied, it cannot be contended that fish and prawn are one and the same commodity. If a man were to ask for fish in the market and if prawn is provided or in the vice versa, he would not accept the same. However, it is an admitted fact that no evidence to that effect is available in this case.
28. It is well-settled that if there is some difficulty, as in this case, there is no evidence to show that the term concerned does not have a particular popular connotation, the Courts have to resort to dictionaries and lexicons. It is also well-settled that all aquatic creatures cannot be grouped into a category of 'fish' for there are several kinds of such creatures. In 'Encyclopaedia Britannica' Vol.7, 15th Edition 330, 'fish' is described as 'a variety of cold blooded aquatic vertebrate of several evolutionary lines'. In the World Book of Encyclopaedia Vol VII 1977 Edition at page 138) 'fish' is described as 'vertebrates that live in water'. In Concise Oxford Dictionary, 'fish' is described as 'vertebrates cold blooded animal, living in the water, having gills, through out life'.
29. Webster's Encyclopedic Unabridged Dictionary of the English Language defines fish as ---
1. any of various cold blooded, completely aquatic vertebrates, having gills, commonly fins and typically an elongated 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 -- any of various shrimp like decapod crustaceans of the general palaemon, penaeus, etc., certain of which are used as food. The Oxford English Dictionary Vol IV, 1978 gives the meaning of fish as under:
In popular language, any animal living exclusively in the water; primarily denoting vertebrate animals provided with fins and destitute of limbs; but extended to include various cetaceans, crustaceans, molluscs, etc. In modern scientific language (to which popular usage now tends to approximate) restricted to a class of vertebrate animals provided with gills throughout life and cold-blooded.
30.The Chambers Dictionary of Science & Technology (2nd Reprint of 1st edition) in its Appendix has furnished the Classification of the Animal kingdom. The relevant portion of that classification read as under:
Phylum Sub-phylum super class class sub-classArthropoda Onychophora Tardigrada Pentastomida Trilobitomorphia Chelicerata MerostomataArachnidaMandibulata CrustaceaPauropodaDiplopodaChilopodaSymphylaInsecta ApterygotaExopterygotaEndopterygotaChordata Hemichordata EnteropneustaUrochordata Cephalochordata Vertebrata AgnathaGnathostomataChondricythyesOsteichthyesAmphibiaReptiliaAves, Mamalia
From this, it is evident that Crustaceans are found under the sub phylum of mandibulata and phylum of Arthropoda. Shrimp is smaller in 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 denoted primarily as vertebrates with fins and destitute of limbs, but extended 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 the life and cold blooded.'
32. The common parlance distinction between 'fish' and 'prawn/shrimp' supported by the dictionary meaning and the Biological differences stated above make it clear that though fish and prawn/shrimp are aquatic animals, they are different from each other. The commercial parlance as well as biological classification, as extracted above, show that fish (vertebrata) is conspicuously different from prawn/shrimp (crustaceans).
33. In addition to that, before the Tribunal, volumes of opinions about the biological difference between fish and shrimps were made available. A Professor from the Agricultural University has 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 the large class of crusacea under the phylum arthropoda. Shrimps are invertebrates. The body of fish is covered by dermal scales but that of a shrimp is covered by chitinous exoskeleton. In fish, blood is red-coloured and contains haemoglobin, while in shrimp, it is colourless, thin, watery fluid. The digestive system in fish is coiled and fully developed with different regions like stomach, small intestine, large intestine, etc., and associated glands like liver, pancreas, etc., In shrimp, digestive system is straight with just one digestive gland, viz., hepatopancreas. It appears that the expert opinion is akin to the dictionary meanings extracted above.
34. Further, to find out as to how a product or good or a thing has been understood by the Legislature, or in Orderto find out the intention of the legislature, there is no harm nor taboo to consider the way in which the same good has been dealt with by the Legislature in some other enactment. The Agricultural Produce Cess Act, which is the subject matter in this case, is a central Act enacted by the Central Government for the purpose of making better financial provision for the carrying out by the Indian Council of Agricultural Research of the objects for which it was established. Another central enactment, which provided for establishment of a Statutory Authority to sort out the problems faced by the marine product industry, enacted by the Central Government is the Marine Products Export Development Authority Act, 1972 (Act 13 of 1972), in which 'marine product' has been defined as follows:
marine products' includes all varieties of fishery products known commercially as shrimp, prawn, lobster, crab, fish, shell-fish, other aquatic animals or plants or parts thereof and any other products which the Authority may, by notification in the Gazette of India, declare to be marine products for the purposes of this Act.
The said definition has been taken in aid to find out the intention of the legislature vis--vis, the term 'fish' by the Tribunal. The Tribunal found that the definition of the word 'marine products' in that 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 different marine products, show that the shrimp, prawn and fish were known as different items in commercial parlance. Like that the Tribunal also took the clue from the Customs Tariff Act, 1975 wherein also fish has been classified under different heading than shrimps/prawns, which has been classified in yet another heading.
35. From the whole lot of materials available, the one and only conclusion that can be arrived at is that the expression 'fish' found as item No. 7 in the Schedule to the Agricultural Produce Cess Act, 1940, does not include within itself prawns and shrimps.
36. We can also take support from the decision of the Orissa High Court in the case of State of Orissa v. CI Foods Limited (1982) 50 STC 152, wherein a Division Bench has found that biologically, 'fish' and 'prawn' are two different classifications, and qualitatively, 'fish' and 'prawn' are two different commodities and on the evidence placed, even in the common parlance, they were understood as two different items. There was no scope for one item to pass for the other. The said decision of the Orissa High Court was followed by another Division Bench of the same High Court in the case of the same Assessee reported in 68 STC 284.
37. The Kerala High Court while answering the question as to whether 'cuttlefish' is a variety of 'fish', or not, after referring to various technical meanings, in the case of Sunbay Food Corporation v. State of Kerala (1986) 63 STC 270, has observed as under:
Thus, the poignant feature of 'cuttle-fish' is that it is a non-vertebrate. Prawns and lobsters are also non-vertebrates. Even the Act does not include prawns and lobsters in the category of fish, as they have been made taxable items. There is no dispute about it.
The conclusion to be drawn from the above discussion is that 'cuttlefish' cannot be treated as a fish variety. It is hence not an exempted item.
38. The finding of the above case is also yet another support to the conclusion we arrived at. The ultimate conclusion arrived at by the Division Bench was 'cuttlefish' is a non-vertebrate and hence not a 'fish'. In this case, prawns/shrimps are also non vertebrates and hence, they are different from fish, which is a vertebrate.
39. The Andhra Pradesh High Court in the case of T.B.R. Exports (Madras) v. State of Andhra Pradesh 116 STC 257, after referring to the decisions of the Orissa High Court in the cases of C.I. Foods cited supra, has held as follows:
ing given our anxious considerations to the rival contentions, we have reached the conclusion that it is not possible to agree with the contentions canvassed by the learned Counsel for the Petitioner-Assessee, for obvious reasons while applying a common parlance test it cannot be seriously contended that fish and prawns are one and the same commodity. If a lay man were to ask for fish in the market and if prawn is provided he would promptly refuse it and vice versa. Fish and prawns are separate commodities as understood in commercial world.
40. Hence, the second substantial question of law is answered in favour of the Assessee by holding that the expression 'fish' contained in Schedule 7 to the Agricultural Produce Cess Act, 1940 would not include within itself prawns and shrimps.
41. Mr. Joseph Vellapally, sought to take assistance from the Judgment of the Supreme Court in the case of Collector of Customs, Bombay v. Swastic Woolens (P) Ltd. : 1988(37)ELT474(SC) to contend that the question as to whether 'fish' would include prawns/shrimps, is a question of fact, when the Tribunal and the Authorities below have held, that they are two different commodities under Section 130 of the Customs Act, an appeal which involves a substantial question of law, can alone be entertained and the issue being question of fact, the Court need not interfere with the finding arrived at by the ultimate fact finding Authority.
42. In that case before the Apex Court, an importer who imported consignment of wool materials, claimed that it as wool waste and hence not liable for Customs Duty as per a Notification. The department was of the opinion that what was imported was not wool waste, but wool sleeve and imposed duty. The experts gave a report that it was not possible to give an opinion by visual observations of the material and that there was no specification laid down for the same by the ISI or International Standard Organisation. In those circumstances of the case, the Tribunal noted that the question would have to be understood on the basis of the trade understanding. Thus, the question involved in that case was whether the goods imported is woollen waste or woollen sleeve, that is a question of fact. But in the present case, the question whether the expression 'fish' includes prawns/'shrimps' 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.
43. For the discussion above made, the appeals are dismissed. However, there is no Order as to costs. The connected miscellaneous petitions are consequently dismissed.