Commissioner of Customs Vs. theva and Co. - Court Judgment

Excerpt:
1. in these applications the revenue (appellant) prays for stay of operation of the impugned orders of the commissioner (appeals). the revenue is aggrieved by the impugned orders setting aside levy and collection of cess on export of 'prawns and shrimps' under the agricultural produce cess act, 1940. the principal issue to be eventually settled in the appeals is whether the expression 'fish' includes the subject goods. the revenue has not shown any exceptional reason for stay of operation of the impugned orders. there is an averment to the effect that the cess amount involved is very high and significant. but what matters is whether the cess is leviable at all.2. ld. jcdr has been heard in this application. we have also heard the ld. sr. advocate shri joseph vellapally for the respondents, who has placed on record the provisions of the agricultural produce cess act, 1940 and has also invited our attention to the decision of the orissa high court in the case of state of orissa v. ci foods ltd. [50 stc 152] wherein, on the basis of the evidence available in that case, the high court held that 'fish' and 'prawn' were distinct from each other. at least, the high court's decision exists in favour of the assessee. no binding case law to the contra has been cited by the revenue. prima facie, it appears to us that the revenue has not made out a good case for stay of operation of the impugned orders which can claim support from the high court's decision.3. at this stage, ld. jcdr prays for early hearing of the appeals. this prayer is not opposed. we accede to the request of ld. jcdr and direct the appeals to be posted to 28-4-2005.

Judgment:
1. In these applications the Revenue (appellant) prays for stay of operation of the impugned orders of the Commissioner (Appeals). The Revenue is aggrieved by the impugned orders setting aside levy and collection of cess on export of 'prawns and shrimps' under the Agricultural Produce Cess Act, 1940. The principal issue to be eventually settled in the appeals is whether the expression 'fish' includes the subject goods. The Revenue has not shown any exceptional reason for stay of operation of the impugned orders. There is an averment to the effect that the cess amount involved is very high and significant. But what matters is whether the cess is leviable at all.

2. Ld. JCDR has been heard in this application. We have also heard the ld. Sr. Advocate Shri Joseph Vellapally for the respondents, who has placed on record the provisions of the Agricultural Produce Cess Act, 1940 and has also invited our attention to the decision of the Orissa High Court in the case of State of Orissa v. CI Foods Ltd. [50 STC 152] wherein, on the basis of the evidence available in that case, the High Court held that 'fish' and 'prawn' were distinct from each other. At least, the High Court's decision exists in favour of the assessee. No binding case law to the contra has been cited by the Revenue. Prima facie, it appears to us that the Revenue has not made out a good case for stay of operation of the impugned orders which can claim support from the High Court's decision.

3. At this stage, ld. JCDR prays for early hearing of the appeals. This prayer is not opposed. We accede to the request of ld. JCDR and direct the appeals to be posted to 28-4-2005.