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The Deputy Minister of National Revenue for Customs and Excise (Appellant)
v.
Danfoss Manufacturing Limited, Techumseh Products of Canada Limited, and John Inglis Company Limited (Respondents)
Court of Appeal, Jackett C.J., Cameron and Sweet D.JJ.—Ottawa, May 9 and 10, 1972.
Customs—Refrigerator parts—Classification of.
A number of compressors were imported into Canada with a view to their sale to a manufacturer of refrigerators to be used in making refrigerators. The compressors were, however, equally suitable to be used as, for example, parts in the manufacture of dehumidifiers. The Tariff Board declared the compressors not to be "refrigerator parts" under, item 41507-1 of the Customs Tariff but "machines, n.o.p." under item 42700-1.
Held, dismissing an appeal—
(1) The Board was entitled to come to its conclusion on the facts.
(2) The word "refrigerators" in tariff item 41507-1, which appears under the heading "refrigerators, domestic or store", cannot be construed as applying to the entire range of commercial refrigerating equipment but only to the ordi nary appliance used in the home and the store under that name.
APPEAL from Tariff Board. J. E. Smith for appellant.
Gordon Henderson, Q.C. and James Worrall, Q.C. for Danfoss Manufacturing Limited.
D. D. Diplock, Q.C. for Techumseh Products of Canada Limited.
The judgment of the Court was delivered by
SWEET D.J.—This is an appeal under section 45(1) of the Customs Act, as enacted by c. 26 of the Statutes of Canada of 1958 1 from a declaration of the Tariff Board dated June 1, 1971 (Appeal No. 940) allowing an appeal to that Board by the respondent Danfoss Manu facturing Limited and declaring certain com pressors imported by that respondent (hereinaf- ter referred to as "Danfoss") during the period from January 3, 1968, to May 22, 1968, not to be "refrigerator parts" classifiable in item
41507-1 of the Customs Tariff but "machines, n.o.p." classifiable in tariff item 42700-1.
By virtue of section 45(1), this appeal is an appeal "upon any question of law".
The compressors in question were imported by Danfoss for resale to third persons who used them in the manufacture of refrigerators.
The tariff items in question read as follows:
British Most
Prefer- Favoured
ential Nation General
Tariff Tariff Tariff
Refrigerators, domestic or store, completely equipped or not:
41507-1 Refrigerator parts, of iron or steel or of which iron or steel or both are the com ponent materials of chief
value 72 p.c. 20 p.c. 35 p.c.
42700-1 Machines, n.o.p., and ac cessories, attachments, con trol equipment and tools for use therewith; parts of the
foregoing . 24 p.c. 15 p.c. 35 p.c.
Two questions were the subject of the hear ing before the Tariff Board, namely:
1. Whether the compressors in question were "Refrigerator parts ...", and
2. If they were refrigerator parts, were the compressors in question parts "... of which iron or steel or both are the component materials of chief value".
The Tariff Board decided that the compressors in question were not refrigerator parts and therefore made no finding on the second ques tion. To consider whether the decision on the first question was correct, it will be necessary
to refer only to the facts that bear on that question.
According to the Board's decision, the com pressors in question are not "goods designed and manufactured solely to be refrigerator parts and bought and sold for this purpose only" but are, rather, "goods designed and manufactured for uses not restricted to refrigerators though ... they are designed, manufactured and actual ly used in refrigerators as well as in other things". The Board further held that, while there were certain limitations upon the com pressors in question, "such limitations would not prevent the use of the compressors in vend ing machines, farm milk coolers, water drinking fountain coolers, rivet coolers in airplane facto ries or dehumidifiers".
In the view of the Board, the expression "refrigerator parts" in item 41507-1 "implies goods which are either by their very nature parts of a refrigerator or are, at the time of importation, incorporated into a refrigerator or packaged together with other parts of such a refrigerator". The Board points out that the item does not use words equivalent to "for use as refrigerator parts" or "for use in making refrigerators" and says that "It is an item describing goods rather than indicating the use to which they are put." As examples of what would be "refrigerator parts" within the item, the Board refers to "Certain insulated doors and sides, certain door handles, certain refrigerating compartments, certain shelving and other things which, by nature and design, are parts for refrigerators and generally are committed to use as such".
By applying its views as to the meaning of the words "refrigerator parts" to the facts as found by it, the Board concluded that the compressors in issue are not "refrigerator parts" within the meaning of those words as used in tariff item 41507-1 but were "machines, n.o.p." within tariff item 42700-1.
No attack was made on the Tariff Board's findings of fact as set out above and, these facts must therefore be accepted as correct.
The appellant's first contention was, in effect, as I understood it, that the expression "refriger- ator parts" includes, in addition to articles that are so specialized as to have no use except in refrigerators, "many parts designed for and gen erally but not always used in refrigerators". During the course of argument, counsel put it, with some force, that where, over a period of years, all the articles of a certain class have in fact been imported to be used in the manufac ture of refrigerators, it follows that such articles are "refrigerator parts".
On this aspect of the appellant's case, the difficulty that counsel could not overcome is the fact that, when Parliament has intended to determine the application of a tariff item by reference to the actual use for which a particu lar article was imported, it has done so by framing what is generally referred to as an "end use item". An example of such an item is found in tariff item 41435-1, which reads as follows:
British Most
Prefer- Favoured-
ential Nation General
Tariff Tariff Tariff
41435-1 Complete parts of cash registers when imported by manufacturers of cash reg isters for use in the manu facture of such registers in
their own factories 121 p.c. 124 p.c. 25 p.c.
GATT 10 p.c.
It is the difference between such an item and item 41507-1 which caused the Tariff Board to say:
The item does not use words equivalent to "for use as refrigerator parts" or "for use in making refrigerators". It is an item describing goods rather than indicating the use to which they are put.
Another obstacle to accepting this attack on the Board's conclusion is that, in the absence of some special direction in the statute to the contrary, goods must be classified under the Customs Act as they are at the time of entry. See: The Deputy Minister of National Revenue for Customs and Excise v. MacMillan & Bloedel (Alberni) Limited [1965] S.C.R. 366, as applied in The Deputy Minister of National Revenue for Customs and Excise v. Ferguson Industries Ltd. (1972) (unreported) per Pigeon J.
Having regard to the facts as found by the Tariff Board, and even assuming that it be accepted that compressors of the kind in ques tion had never been used in Canada except in the manufacture of refrigerators (which fact does not appear to have been found by the Tariff Board or established by the evidence), this Court is of the view that the Tariff Board's conclusion that the compressors in question were not "refrigerator parts" was a conclusion that was open to the Board. As they existed at the time of importation, there was nothing to cause the compressors in question to be classi fied as "refrigerator parts" and not as "dehumidifier parts" or parts for some other equipment of the kinds enumerated by the Board except the admitted fact that the pro posed purchaser from the importer was a refrig erator manufacturer who intended to use them for making refrigerators. Another importation of compressors that were exactly the same in all respects might be, on the facts found by the Board, for use in manufacturing dehumidifiers. There would be no possible justification for classifying such compressors differently depending on their intended use. Attractive as may be the argument that all such compressors have heretofore been imported for making refrigerators and that they must, therefore, be regarded as "refrigerator parts", the law must be construed by reference to the whole of its possible field of application and not by consid ering only the limited areas in which there has heretofore been occasion to apply it.
The matter has been considered so far on the assumption that the word "refrigerator" in the tariff item means only the articles that are com monly referred to as such and does not include vending machines, farm milk coolers, water drinking fountain coolers, rivet coolers in air planes or dehumidifiers. The second ground of attack of the Board's decision is put in the appellant's memorandum as follows:
The statutory context in which the word appears shows that it was intended to cover the entire range of commercial refrigerating equipment as well, and would include such devices as milk coolers and drinking fountain coolers in which the Board found that compressors like those in issue could also be used.
The short answer to this argument is that the tariff item in question appears under a heading that reads, in part:
Refrigerators, domestic or store ..
Even if taken by itself the word "refrigera- tor" could in some contexts be regarded as including anything that refrigerates; a reference to a domestic refrigerator or a store refrigerator cannot be considered as a reference to anything other than the ordinary appliance that is used in the home and in the store under that name. Furthermore, in our view, in ordinary parlance, one does not refer to every appliance that util izes refrigeration as a refrigerator. Various kinds of appliances have acquired names of their own depending on the feature that was uppermost in the mind when they acquired their names. The word "refrigerator" is a word that, in ordinary parlance in Canada, has the restrict ed meaning with which it was used by the Tariff Board.
The appeal will be dismissed.
As the proceedings in the Tariff Board and the decision of the Board occurred before the coming into force of the Revised Statutes of Canada, 1970, on July 15, 1971, I refer to the statute law as it was before that time.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.