In the Customs, Excise and Service Tax Appellate Tribunal Bangalore
Shri T.K. Jayaraman, Member (Technical) Shri M.V. Ravindran, Member (Judicial)
Commissioner of Customs, Cochin
Versus
Gold Farm Foods Pvt. Ltd. & Ors.
Final Order Nos. 1389-1399/2008 dt. 12.12.2008 certified on 31.12.2008 in Appeal Nos. C/587-597/2008
Per T.K. Jayaraman:
The issue involved in all these appeals is one and the same. The respondents exported shrimps, prawns, crabs, squids, etc. Revenue contended that on export of these items, the respondents are liable to pay Agricultural Produce Cess under the AP CESS Act of 1940. After the assessment, the said AP Cess was paid on the directions of the Customs Authorities. Thereafter, the respondents approached the Commissioner (Appeals) agitating the issue. The Commissioner (Appeals) passed orders holding that the respondents are not liable to pay AP Cess on the impugned items. Consequent to the Commissioner (Appeals)'s orders, the respondents filed refund claims for refund of the Cess already paid. However, the Original Authority rejected the refund claims on the ground that the respondents are liable to pay the Cess on all kinds of marine products. The respondents approached the Commissioner (Appeals) for relief. The Commissioner (Appeals) passed the impugned orders granting relief to the respondents. While passing the impugned orders, the Commissioner (Appeals) relied on the following decisions: -
(i) CC, Cochin vs. Abad Foods - Final Order Nos. 153 to 156/2007 dated 16.01.2007 (Tri.-Bangalore)
(ii)CC, Tuticorin vs. Edhayam Frozen Foods - 2005(07)LCX0120 Eq 2005 (190) ELT 0072 (Tri.-Chennai)
(iii) CI. Foods - 1987 (68) STC 284 (Tri.)
(iv) TBR Exports - 1999 (116) STC 257 (A.P.)
(v) Jaysatya Marine Exports Pvt. Ltd. - 1999(02)LCX0216 Eq 1999 (111) ELT 0352 (A.P.)
(vi) Avanti vs. CC - 2007(01)LCX0239 Eq 2007 (080) RLT 0681 (CETAT-Ban.) =2007(01)LCX0239 Eq 2007 (213) ELT 0280 (Tri.-B)
2. Revenue is aggrieved over the impugned orders of the Commissioner (Appeals). The contention of the Revenue is that all forms of marine products are liable to AP Cess as Fish.
3. On the other hand, the learned Advocate for the respondents submits that AP Cess is leviable only on Fish and not on the impugned products. He stated that this Bench had already taken a decision in the Final Order Nos. 153 to 156/2007 dated 16.01.2007 in the case of CC, Cochin vs. M/s. Abad Fisheries [reported in 2007(01)LCX0112 Eq 2007 (080) RLT 0667 (CESTAT-Ban.)]. A similar decision was taken by the Chennai bench of the Tribunal in the case of CC, Turicorin vs. Edhayam Frozen Foods (cited supra). The Revenue went in appeal to the Hon'ble High Court of Madras in CMA No. 212/2007 dated 04.07.2008 upheld the decision of the Chennai Bench. The Hon'ble High Court, in para 40 of the said decision, has observes as follows:-
"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 of the agricultural Produce Cess Act, 1940 would not include within itself prawns and shrimps."
4. In view of this clear cut position upheld by the Hon'ble High Court of Madras, we do not find any merit in the Revenue's appeals and the same are dismissed.
