Prawn is not fish. That is what the Madras High Court has said in a very recent judgement[1]. The context was whether export cess was applicable for prawn as it was applicable for fish under the Agricultural Produce Cess Act, 1940. The High Court said that prawn is not fish and so the cess is not leviable.
Here in this treatise I am writing to say that this observation that prawn is not fish is not exactly born out by common parlance test which is relevant for the purpose of taxation. It is well accepted in several judgements of the Supreme Court[2] that for taxation purpose the words have to be understood in the popular sense, that is, as they are understood in the market parlance.
The Supreme Court has emphasised that the meaning in the popular parlance is often different from the scientific meaning such as in Biology, Botany or Zoology books. In the case of betel leaf the Supreme Court said that botanically it is vegetable but in market parlance it is not.
In this case the Madras High Court has made a clear cut observation that in the market parlance fish does not include prawn. The Court has said the following: "Fish and prawn are delicacies in 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".
I would like to point out respectfully that it is not only in South India but in whole of India fish and prawn are delicacies and that prawn is regarded as fish. When one goes to buy fish he does not just ask for fish. He always says that he wants a specific variety. Prawn is always sold in the fish shop and offered as fish along with other varieties. It is known and eaten as fish as ‘chingri mach’ in Bengali, ‘jhinga machli’ in Hindi, Errameen in Tamil and Chemean in Malayalam (mean means fish in Malayalam as well as in Sanskrit) and so on .
There are famous stories in Bengali of how a widowed lady was made to eat prawn without her knowing which resulted in her getting hugely embarrassed. From all these it doubtless that in common parlance prawn is regarded as fish in India .
Biologically they are different. The judgement of the Orissa High Court[3] quoted by the Madras High Court has only said that they are different biologically and qualitatively. But this is not the same thing as saying that they are same in the popular parlance.
However, one can make difference between prawn and fish from other points of view. For example, there is a difference between prawn feed and feed for fish and the entries in the sales tax tariff can be different. It is also possible to distinguish between agricultural products and marine products.
The present case before the Madras High Court was under the Agricultural Produce Cess Act, 1940 which was enacted by the Central Government for the purpose of making better financial provision for carrying out research on the subject. For marine products, there is a separate Act, namely, Marine Products Export Development Authority Act.
The conclusion is that prawn and fish can be differentiated for various purposes such as for development of feed or providing financial assistance for research for agricultural or marine products and so on. But it cannot be said in general that in the market parlance prawn is not fish. Prawn is fish in popular parlance.
