1. Exporters challenged levy of cess under Agricultural Produce Cess Act, 1940, on prawns and shrimps, arguing they are not fish. (Para 4 , 5 )
Back
Next 
2001 Supreme(SC) 816
SUPREME COURT OF INDIA
N.Santosh Hegde : S.P.Bharucha : Y.K.Sabharwal
Commissioner Of Customs, Visakhapatnam
Versus
Jaya Satya Marine Exports Private Limited
Case No. : 3078 , 3091 of 1999
Date of Decision : 5/1/01
The Court held that when a statutory alternative remedy of appeal is available, writ petitions should be relegated to that remedy. Additionally, judicial notice cannot be taken of factual distinctions in common parlance without sufficient evidence on record.
Headnote:(A) Agricultural Produce Cess Act, 1940 - Sections 3 and 5-A - Customs Act, 1962 - Levy of cess on export - Application of Customs Act for collection of cess - Definition of "fish" under the Schedule - Writ jurisdiction vs. Alternative remedy - Where a statutory remedy of appeal is available under the law, the High Court should generally relegate the parties to that remedy rather than entertaining a writ petition. (Paras 8, 9)
(B) Judicial Notice - A court cannot take judicial notice of a fact that a common man treats two different articles as distinct in common parlance without sufficient evidence being placed on record. (Para 7)
Facts of the case:
Exporters of prawns and shrimps challenged the levy of cess imposed under a specific Act, contending that their export products were not covered by the term "fish" listed in the Act's Schedule. The High Court allowed the writ petitions, ruling that judicial notice could be taken of the fact that in common parlance, fish and prawns are treated as different articles, and declined to relegate the petitioners to an alternative remedy.
Findings of Court:
The court found that no evidence was presented to establish that prawns and shrimps are not "fish" in common parlance, and thus, the High Court could not take judicial notice of such a fact. Furthermore, since an alternative remedy by way of appeal is available under the provisions of the Customs Act as per the statutory framework, the High Court should not have entertained the writ petitions.
Issues: Whether the High Court was justified in entertaining writ petitions instead of relegating the petitioners to an alternative statutory remedy, and whether judicial notice could be taken to determine if prawns and shrimps fall under the category of "fish".
Ratio Decidendi: When a statutory alternative remedy of appeal is available, the court should relegate the parties to that remedy. Judicial notice cannot be used to bypass the need for evidence on technical or common parlance interpretations of terms used in a taxing statute.
Result: Civil appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Petitioners contended prawns and shrimps are not fish; respondents argued for alternate remedy and that they are covered by the term fish. (Para 5 , 6 )
3. High Court should not have taken judicial notice that common man treats fish and prawns as different articles without any evidence. (Para 7 )
4. Courts should relegate parties to alternate remedy when insufficient evidence is placed before them to decide technical matters. (Para 6 , 7 , 8 )
5. Appeals allowed; writ petitioners directed to file appeals under Customs Act within eight weeks, with no objection on limitation or predeposit. (Para 10 , 12 , 13 )
6. Can a writ court decide technical matters without sufficient evidence from the parties?
No, a writ court should not decide such matters without sufficient evidence and should relegate parties to an alternate remedy. (Para 6 , 7 , 8 )
7. Can judicial notice be taken that a common man treats fish and prawns as different articles?
No, such judicial notice cannot be taken as there is no basis for it in common parlance without evidence. (Para 7 )
S.P.BHARUCHA, J.
(1) DELAY condoned in the special leave petitions.
(2) LEAVE granted.
(3) THESE appeals challenge the correctness of the same judgment and order. The judgment and order was passed on several writ petitions and it allowed those writ petitions.
(4) THE Agricultural Produce Cess Act, 1940, was enacted to make financial provision for the carrying on by the Indian Council of Agricultural Research of its objects and, for this purpose, to impose on certain articles a cess by way of customs duty on export, the proceeds whereof were to be paid to that Council. Section 3 of the Act imposes the 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 5-A makes the provisions of the Customs Act, a 1962, and the Rules and Regulations thereunder applicable in relation to the levy and collection of the cess on all articles included in the Schedule as they apply in relation to the levy and collection of customs duty. Item 7 of the Schedule lists: "Fish".
(5) THE writ petitioners are exporters of prawns and shrimps. Such exporters have been made liable to pay the cess ever since the Act was enacted. The writ petitioners, however, in the year 1998 filed the writ petitions to contend that prawns and shrimps were not covered by the word "fish" and that, therefore, they were not liable to pay the cess on the export of prawns and shrimps.
(6) IT was, among other things, contended on behalf of the respondents to the writ petitions that the writ petitioners should be relegated to an alternate remedy. The High Court declined to do so. It quoted the judgment of this Court in Chandrapur Magnet Wires (P) Ltd. v. CCE thus:
"WHERE sufficient evidence is placed before the writ court for an unambiguous conclusion 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."
(7) IT is not disputed that, let alone sufficient evidence, there was no evidence whatever before the High Court on the basis of which it could come to the conclusion that prawns and shrimps were not "fish" in common parlance. All that has been repeatedly stated in the judgment is exemplified by this sentence:
"THERE can be no gainsaying that judicial notice can be taken of a fact that a common man treats fish and prawns as two different articles...."
We are unable to take such judicial notice.
(8) WE are of the view that the High Court should not have entertained these writ petitions and should have relegated the writ petitioners to the alternate remedy.
(9) THAT an alternative remedy by way of an appeal is available is clear from Section 5-A, which we have quoted, and, indeed, the learned Additional Solicitor-General appearing for the Union of India expressly affirmed this.
(10) WE must, therefore, direct that the writ petitioners may file appeals under the provisions of the Customs Act within eight weeks from today. If that is done and the requisite predeposits are made, the respondents to the writ petitions shall not raise any objections, including those of limitation, to the maintainability of the appeals. It is expected, in the circumstances, that the appeals will then be disposed of on merits.
(11) WE make it clear that we express no opinion on the merits of the case on either side.
(12) THE bank guarantees that have been furnished by the writ petitioners pending the disposal of these appeals shall be kept alive until such time as the predeposits required for the appeals under the Customs Act are made.
(13) THE civil appeals are allowed accordingly.
(14) NO order as to costs.
