Per Shri V.P. Gulati :

The issue in the appeal relates to benefit of Notification 49/95 dated 16.3.95 as amended. The benefit is sought under Sl.No. 17A covering tariff heading 8479.89 and the description of the goods covered by this heading is machinery for production of commodities. The respondents have imported pond aerators which has been classified under heading 8479.89. However, the original authority denied the benefit of this Notification holding that pond aerators was not used for production of any commodity in as much as the same were used in the Acquafarm for shrimps production. Pond Aerators provide for necessary oxygenation of the water which is essential for the survival and growth of shrimps.

2. The learned DR for the department has pleaded that the learned lower appellate authority was in error in having allowed the benefit of this Notification in as much as no commodity as such came to be produced in the farm and in any case the equipment in question was not instrumental in the production of prawns. He has pleaded that the seedling which are prawns themselves are introduced in the farm at different places wherein these seedlings spread in the water contained in certain parameter. Necessary food is provided to these seedlings in the water and simultaneously through the pond aerators necessary arrangement for oxygenation of the water in the night is provided. He has pleaded that in the farm as such these seedlings by nourishment provided and the growth atmosphere provided therein these grow as full size prawns which thereafter are harvested for sale and processing purposes. He has pleaded that the term used in the Notification is machinery for production of commodities. He has pleaded that nothing gets produced as such in the farm as seedlings have been only helped to grow in the farm to the required size for trading purposes. He has pleaded that in this background therefore, the benefit of the Notification could not have been allowed. The learned CCE (A) it is seen, has relied upon the decision of the Hon'ble Supreme Court in the case of Indian Farmers Fertiliser Coop. Ltd. reported in 1996 (15) RLT 498 (S.C.) = 1996 (86) ELT 177 (SC) to hold that the machine used can be taken to have been used for production of commodity i.e. Prawns.

3. The learned Consultant for the respondents has pleaded that the term "production of commodities" should be given a proper meaning. His plea is that fish including prawns are a taxable item both under the Customs tariff and the Central Excise tariff. He has pleaded that while the seedlings are purchased by the respondents from outside these seedlings cannot be considered as prawns as such as a commodity for sale and there become prawns as a commodity only after they are grown into full size in the Acqua farm. His plea is that prawns being an edible commodity which is bought and sold for its value as edible product, the machinery used for the purpose should be treated as for production of a commodity.

4. We have considered the pleas made by both the sides. The question that falls for consideration is as to what should be the meaning attached to the term for production of commodities'. The Notification does not amplify as to the scope of the term "production of commodity" as such. This term therefore has to be understood as used ordinarily in the common parlance. The term produce as set out in the Webster's New Collegiate Dictionary is as under"

to give being, form or shape to; manufacture.....

The term "commodity" is defined in the OXFORD Illustrated Dictionary as under :

Article of trade as opp. service; useful thing.

In the context of Prawn culture and breading, the question that has to be answered is whether the operations which are carried out in the Acqua farm can be taken to be one relating to production of a commodity. Prawn as entity in the animal kingdom is already produced in the form of seedlings which have been purchased by the assessee and these are the ones which are i