A-1202-82
Coca Cola Ltd. (Appellant)
v.
Deputy Minister of National Revenue for Customs
and Excise (Respondent)
and
Viceroy Manufacturing Company Limited, Scep
ter Manufacturing Co. Ltd. (Intervenants)
(Appellants)
Court of Appeal, Thurlow, C.J., Ryan and Le
Dain JJ.—Ottawa, December 7 and 22, 1983.
Customs and excise — Whether soft drink cases and hand
carriers subject to sales tax imposed by s. 27 of Excise Tax
Act — Test to determine "machinery or apparatus" used in
"manufacture or production" not limited to process preceding
finished goods stage — Board failing to consider evidence of
use in production process — Cases not excluded from exemp
tion by Sch. III, Part III, s. 1 of Act as not used "exclusively"
in containing goods — Appeal allowed — Excise Tax Act,
R.S.C. 1970, c. E-13, ss. 2(1) (as am. by S.C. 1980-81-82-83,
c. 68, s. 1(3),(3.1)), 27 (as am. by S.C. 1970-71-72, c. 62, s. 1;
S.C. 1974-75-76, c. 24, s. 13; S.C. 1980-81-82-83, c. 68, s.
10), 29(1) (rep. and sub. S.C. 1980-81-82-83, c. 104, s. 9), 59,
60 (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2)), Sch.
III, Part I, s. 1 (rep. and sub. S.C. 1980-81-82-83, c. 68, s.
28), Sch. III, Part XIII, s. 1(a)(i) (rep. and sub. S.C. 1973-74,
c. 12, s. 2(5)) — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 52(c)(î).
Jurisdiction — Federal Court of Appeal — Appeal from
Tariff Board decision under s. 60 of Excise Tax Act not
strictly limited by wording of question in order granting leave
to appeal — Interpretation of question in light of issues raised
by appeal — Excise Tax Act, R.S.C. 1970, c. E-13, s. 60(1),
(4) (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2)).
Soft drink cases and hand•carriers are used by the appellant
for the handling of its soft drink bottles in different processes,
from the plant to the consumer. This is an appeal under section
60 of the Excise Tax Act from a decision of the Tariff Board
declaring them subject to the sales tax imposed by section 27 of
that Act.
The first point is whether the scope of the appeal is limited
by the wording of the question of law as formulated by the
Federal Court Judge who granted leave to appeal. The second
is whether the cases and carriers are exempt, under subsection
29(1) and subparagraph 1(a)(i) of Schedule III, Part XIII of
the Act, as apparatus used directly in the manufacture or
production of goods. The third is whether they are denied
exemption by the concluding words of section 1, Schedule III,
Part I.
Held, the appeal should be allowed. In view of the ambiguity
of the wording of the question, the Court should not adopt a
restrictive interpretation of the question as it would deny the
appellant most of his submissions and as no objection to their
relevancy was raised.
The second point first raises the question of the definition of
the relevant words. Neither the statutory definition of "manu-
facturer or producer" in paragraph 2(1)(J) of the Act, nor the
judicial interpretations of "produced or manufactured" in sub
section 27(1) affords a sure guide as to the meaning of the
words "manufacture or production" in subparagraph 1(a)(i) of
Schedule III, Part XIII, which must be given their ordinary
meaning in their context. The test applied by the Board to
determine whether the cases and carriers are "machinery or
apparatus" used in the "manufacture or production" of goods
unduly restricts the meaning of those words to that used up to,
but not after, the moment when a usable and saleable article is
in existence, without regard to the next necessary step, that of
removing it from the production line. The Board also failed to
consider evidence of use of the cases and carriers at the
beginning of the production process. Therefore, the cases and
carriers are apparatus for use in the manufacture or production
of goods within the meaning of subparagraph 1(a)(i) of
Schedule III, Part XIII.
As for the third point, since the cases and carriers are not
used "exclusively" in containing goods, they do not fall within
the exclusion, pursuant to section 1 of Schedule III, Part I of
the Act, of containers designed for repeated use.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
The Deputy Minister of National Revenue for Customs
and Excise v. Parke, Davis & Company Limited, [1954]
Ex.C.R. 1; The Queen v. York Marble, Tile and Terraz-
zo Limited, [1968] S.C.R. 140; Irving Oil Limited, et al.
v. The Provincial Secretary of The Province of New
Brunswick, [1980] 1 S.C.R. 787; 109 D.L.R. (3d) 513.
COUNSEL:
Lyndon A. J. Barnes and Carol Tennenhouse
Diamond for appellant and intervenants
(appellants).
Judith McCann for respondent.
SOLICITORS:
Osler, Hoskin & Harcourt, Toronto, for
appellant and intervenants (appellants).
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal under section
60 of the Excise Tax Act [R.S.C. 1970, c. E-13
(as am. by R.S.C. 1970 (2nd Supp.), c. 10, s.
64(2))] from a decision of the Tariff Board which
declared, on an application under section 59 of the
Act, that the plastic or wooden soft drink cases
and plastic hand carriers in issue in the proceed
ings are subject to and not exempt from the sales
tax imposed by section 27 [as am. by S.C. 1970-
71-72, c. 62, s. 1; S.C. 1974-75-76, c. 24, s. 13;
S.C. 1980-81-82-83, c. 68, s. 10] of the Act. There
are three points involved in the appeal: first, the
scope of the appeal itself, having regard to the
wording of the order giving leave to appeal;
second, whether the cases and carriers are exempt
under subsection 29(1) [rep. and sub. S.C. 1980-
81-82-83, c. 104, s. 9] and Schedule III, Part XIII,
subparagraph 1(a)(i) [rep. and sub. S.C. 1973-74,
c. 12, s. 2(5)]; and, third, whether they fall within
Schedule III, Part I, and are denied exemption by
the concluding words of section 1 [rep. and sub.
S.C. 1980-81-82-83, c. 68, s. 28] of that Part.
The point as to the scope of the appeal arises on
subsection 60(1) of the Act and the terms of the
order of the Court giving leave to appeal.
The subsection reads:
60. (1) Any of the parties to proceedings under section 59,
namely,
(a) the person who applied to the Tariff Board for a
declaration,
(b) the Deputy Minister of National Revenue for Customs
and Excise, or
(c) any person who entered an appearance with the Secretary
of the Tariff Board in accordance with subsection 59(2),
may, upon leave being obtained from the Federal Court of
Canada or a judge thereof, upon application made within thirty
days from the making of the declaration sought to be appealed,
or within such further time as the Court or judge may allow,
appeal to the Federal Court upon any question that in the
opinion of the Court or judge is a question of law.
The practice under this provision, and under a
similarly worded provision that was in the Cus
toms Act [R.S.C. 1970, c. C-40] for some years
after 1951, has been for the most part, though by
no means invariably, to set out in the order giving
leave to appeal the question which the Court or
judge granting leave considered to be a question of
law. Thus, in The Deputy Minister of National
Revenue for Customs and Excise v. Parke, Davis
& Company Limited,' Thorson P., in dealing with
an appeal, said:
It was my opinion that section 49(3) required that the court
or judge in granting leave to appeal should specify the question
which in its or his opinion was a question of law and on which
the appeal was permitted. Accordingly, on December 29, 1949,
I gave leave to the appellant to appeal to this Court from the
decision of the Tariff Board on what, in my opinion, was a
question of law, which I specified as follows:
Did the Tariff Board err as a matter of law in deciding
that Penicillin S-R, imported under Windsor entries numbers
16407-A, June 23, 1949, and 17043-A, June 28, 1949, is
exempt from duty by virtue of Customs Tariff item 206a?
Later he said:
This is the first appeal to this Court under the Customs Act
and certain observations of a general nature may be in order.
The right of appeal conferred by the Act is a limited one. In the
first place, leave to appeal must be obtained from this Court or
a judge thereof. Moreover, the appeal for which leave may be
obtained is confined to "any question which in the opinion of
the court or judge is a question of law". This language permits
possible anomalous results since the jurisdiction of the Court to
entertain an appeal is made to depend not on whether a
question is actually a question of law but on whether in the
opinion of the court or judge it is so. That being the case, it is
quite possible, through an erroneous opinion of the court or
judge that a particular question is a question of law, that the
Court will find itself vested with jurisdiction to entertain an
appeal on what is actually a question of fact. Conversely, if the
court or judge is erroneously of the opinion that the question in
issue is not a question of law, the Court will have no jurisdic
tion to entertain an appeal, although the question is actually
one of law. Whether such eventualities were contemplated
when the legislation was enacted may be the subject of specula
tion but that they might result from the language of the
enactment does not appear to admit of doubt.
Other cases in which the question was specified
in the order are to be found in the Exchequer
Court Reports for the year 1953 and later years.
' [1954] Ex.C.R. 1, at pages 4 and 5.
The need to specify the question was considered to
arise from the view that the statute required that
the Court or judge which grants leave form the
opinion that the question is one of law. That
interpretation of subsection 60(1) may be open to
question but I do not think it is necessary to review
it in the present case.
In this instance the order granting leave reads as
follows:
Leave to appeal is granted on the question of whether or not
the Tariff Board erred in deciding that the goods in issue were
subject to and not exempt from the consumption or sales tax
imposed by section 27 of the Excise Tax Act in view of the
provisions of section 2(1)(f) of the said Act.
It will be noted that the form of the question
does not differ much from that used in many cases
save for the words "in view of the provisions of
section 2(1)(f) of the said Act". These words raise
the question whether what was considered to be a
question of law, on which leave to appeal was
granted, is somehow limited to the effect of the
addition to subsection 2(1) [as am. by S.C. 1980-
81-82-83, c. 68, s. 1(3),(3.1)] of a paragraph (f)
[as added idem] which includes in the definition of
"manufacturer or producer":
2. (1) .. .
(f) any person who, by himself or through another person
acting for him, assembles, blends, mixes, cuts to size, dilutes,
bottles, packages, repackages or otherwise prepares goods for
sale, other than a person who so prepares goods in a retail
store for sale in that store exclusively and directly to
consumers;
As the result of so restricting the meaning of the
question would be to deny to the appellant most of
his submissions and as no objection to their rele
vancy was raised in the respondent's memorandum
of argument, the Court should, I think, be loath to
so restrict the issue on which the appellant had
leave to appeal by reference to wording which in
the context of the rest of the question is difficult to
interpret. In the circumstances, I do not think the
wording should be read as meaning anything more
than as an indication that the Court, in addition to
the question or questions of law raised by the rest
of the question, was of the opinion that there was
an arguable question of law on the effect of the
addition of paragraph (f) to the definition.
Accordingly, I would hold that the question to be
determined and the appeal are not limited to issues
as to the effect of the enactment of paragraph
2(1)(f).
The second issue requiring determination is
whether the soft drink cases and carriers in ques
tion are exempt from sales tax under subsection
29(1) and Schedule III, Part XIII, subparagraph
1(a)(i) of the Act. In the scheme of Part V of the
Act the general charging provision is subsection
27(1) which imposes tax on the sale price of all
goods "produced or manufactured in Canada" or
"imported into Canada". The provisions relied on
for the exemption are:
29. (1) The tax imposed by section 27 does not apply to the
sale or importation of the goods mentioned in Schedule III ... .
SCHEDULE III
PART xi 11
PRODUCTION EQUIPMENT, PROCESSING
MATERIALS AND PLANS
1. All the following:
(a) machinery and apparatus sold to or imported by manufac
turers or producers for use by them directly in
(i) the manufacture or production of goods,
The appellant produces and sells bottled soft
drinks. When sold by the appellant the bottled soft
drinks are in the cases and hand carriers which are
in issue in the appeal. The appellant sells the
product by the case rather than by the individual
bottle. The hand carriers are made of plastic ma
terial; some of the cases are of plastic material,
others are wooden. Both the carriers and the cases
are so designed as to hold a particular number of
bottles of a particular size or sizes and to protect
them from breakage.
The bottling operation is carried out on produc
tion line equipment capable of producing some 300
filled bottles per minute. Some parts of the equip
ment are involved in the mixing of the concen
trates with desired proportions of water, some with
the washing of the bottles, some with the filling
and capping of the bottles, and some with the
moving of them from one stage of the procedure to
another.
In this operation empty bottles are brought in
the cases and carriers in question to the conveyor
where they are placed on its rollers and carried to
a point where the machinery removes the bottles
from them. The bottles then go in one direction to
be washed, filled and capped, the cases and hand
carriers in another direction in which they are
moved along, in the case of those made of plastic
to be washed, and thence in all cases to a point in
the production line where they are again mechani
cally filled, this time with filled bottles, and there
upon placed on pallets for removal to the
warehouse.
In its description of the operation, the Board
said:
... Mr. Warren described the production process at the bot
tling plant. The concentrates are delivered to the plant in
stainless steel containers and mixed in a mixing tank where
water and sugar are added. The resulting syrup goes through
stainless steel lines to the production area where the syrup and
water are proportioned as required and additional water is
added to reduce the mixture to a finished product. The product
is then ready to go into a bottler or product tank, travelling
through stainless steel lines to the top of a filler bowl. As the
bowl turns the bottles come on to be filled. As the bottles leave
the filler the closures are put on and they go to the packer to be
placed inside the plastic or wooden cases. In some instances the
bottles are placed directly in the cases without being put inside
plastic hand carriers. The cases, when filled, move down a
conveyor to a pile-off station where they are manually loaded
onto pallets and taken to the warehouse for loading onto trucks
for delivery to retail stores. The hand carriers and cases remain
with the retailer for one to three weeks until they are picked up
to be placed on pallets and stored in the applicant's warehouse.
They are returnable and have a normal life of seven years.
No witnesses were called for the respondent but, in cross-
examination of the appellant's witness, counsel adduced evi
dence that the soft drink bottles are placed in the hand carriers
and cases after the drink mix is prepared and injected into the
bottles and after the caps are date coded and put on. The
witness conceded that the only thing done to the bottles after
they are placed in the hand carriers and cases is labelling and
that the quality of the drink was not altered thereafter. The
witness also conceded that the goods in issue are used exclusive
ly for holding the soft drink bottles and that they were designed
for repeated use. During reexamination, the witness asserted
that the applicant was not merely selling bottles of soft drink
but was selling the cases as entire units.
The uncontradicted evidence also shows that
when selling its product the appellant charges a
deposit for the cases and carriers and that in the
normal course of the business they are returned to
the appellant in a few weeks filled with empty
bottles. Thereafter the cases and carriers are used
again to carry the empty bottles to and on the
conveyor to the point where the machinery
removes the bottles from them.
The Board's reasons for denying exemption
under subparagraph 1(a)(i) of Schedule III, Part
XIII appear from the following excerpt:
The Board finds that the bottled soft drinks are fully manu
factured at the time they are placed in the hand carriers and
cases. They are not, either at that time or thereafter, given any
new forms, qualities and properties or combinations. The
manufacture or production of the soft drink must therefore be
regarded as having been completed before the goods in issue
come into use. They do not, therefore, fall within the exemption
provided by section 1(a) of Part XIII of the Act.
The appellant's first submission was that
because of the addition of paragraph (f) to the
definition of "manufacturer or producer" in sub
section 2(1) of the Act the meaning of the expres
sion "manufacture or production" in other sections
of the Act must be taken to have been expanded so
as to include the essentially packaging operations
referred to in paragraph (f).
With respect I do not find that argument per
suasive. It appears to me that the expressions
"manufacturer or producer", "manufactured or
produced" and "manufacture or production",
which are found in various places and contexts in
the Act, are used for differing purposes and that it
is wrong to try to interpret one by reference to
what another means or has been held to include
either in a particular context or in general. As it
seems to me, the definition of "manufacturer or
producer" in subsection 2(1) is intended to identify
a person who will be liable to pay the tax whether
or not he manufactures or produces anything or is
or is not a manufacturer or producer. A reference
to paragraphs (a) to (e) 2 of the subsection and the
classes of persons described in them, I think,
makes this clear. While the added paragraph (f),
unlike the preceding paragraphs, further expands
the definition by reference to functions carried out
in connection with goods, it does not, in my opin
ion, give rise to an inference that such functions
necessarily constitute "manufacture or produc
tion" or "manufacturing or producing" within the
meaning of any of the provisions of the Act.
The meaning of "produced or manufactured" in
subsection 27(1), which has been considered in
numerous cases, also affords no sure guide to what
is meant by "manufacture or production" in any
other provision, including subparagraph 1(a)(i) of
Part XIII of Schedule III. The expression "pro-
duced or manufactured" is used in subsection
27(1) adjectivally to prescribe or outline the scope
of the class of goods on the sale of which tax is
imposed. It refers to goods that have been "manu-
2 2. (1) In this Act
"manufacturer or producer" includes
(a) the assignee, trustee in bankruptcy, liquidator, execu
tor, or curator of any manufacturer or producer and,
generally, any person who continues the business of a
manufacturer or producer or disposes of his assets in any
fiduciary capacity, including a bank exercising any powers
conferred upon it by the Bank Act and a trustee for
bondholders,
(b) any person, firm or corporation that owns, holds,
claims, or uses any patent, proprietary, sales or other right
to goods being manufactured, whether by them, in their
name, or for or on their behalf by others, whether such
person, firm or corporation sells, distributes, consigns, or
otherwise disposes of the goods or not,
(c) any department of the Government of Canada or of
any province of Canada, any board, commission, railway,
public utility, manufactory, company or agency owned,
controlled or operated by the Government of Canada, or
the government of any province of Canada, or under the
authority of the legislature or the lieutenant governor in
council of any province of Canada, that manufactures or
produces taxable goods,
(d) any person who sells, otherwise than in a retail store
exclusively and directly to consumers, cosmetics that were
not manufactured by him in Canada, other than a person
who sells such cosmetics exclusively and directly to hair
stylists, cosmeticians and other similar users for use in the
provision of personal grooming services and not for resale,
(e) any person who sells gasoline, diesel fuel or aviation
fuel, other than a person who sells such goods exclusively
and directly to consumers, and
factured or produced", not goods to be manufac
tured or produced. Whether goods have been
"manufactured or produced" in Canada may be
tested by what has happened to them in Canada.
But the expression does not refer to and is not
concerned with the means by which the goods have
been manufactured or produced. Moreover, deci
sions that turn on whether particular goods have
been "manufactured or produced" in operations
involving them or whether goods fall within the
meaning of that expression in the Act are of little
use in a case of this kind in which there is no issue
as to whether the appellant is a "manufacturer or
producer", within the meaning of the Act, of the
bottled soft drinks or as to the product of its
operation being goods "produced or manufac
tured" in Canada within the meaning of subsection
27(1). What is here in issue is a different question,
that of whether the cases and hand carriers are
sold to or imported by the appellant for use by it
"directly in ... the manufacture or production of
goods", that is to say, its bottled soft drinks. These
words must, in my opinion, be given their ordinary
meaning in their context in the particular subpara-
graph 1(a)(i) of Part XIII of Schedule III.
Accordingly, I would reject the appellant's sub
mission based on paragraph (f) of the definition of
"manufacturer or producer" in subsection 2(1).
The second branch of the appellant's submission
was twofold, first that the Board erred in applying
the test of The Queen v. York Marble, Tile and
Terrazzo Limited 3 and, second, that the Board
failed to consider the evidence that the cases and
carriers in question are used at the beginning of
the production process to introduce onto the con
veyor and carry empty bottles along on it to the
point where the machinery removes them from the
cases and carriers and moves them to the washing
operation.
I agree with both branches of this submission. In
my view the Board erred in applying to the ques
tion whether goods which fall within the meaning
of "machinery or apparatus" are for use in the
"manufacture or production" of goods a test which
3 [1968] S.C.R. 140.
narrowly and unduly confines such machinery or
apparatus to that used up to but not after the
moment when a usable and saleable article is in
existence without regard for what must happen
immediately thereafter to get the article out of the
way of like articles on the production line. By
parallel reasoning one would hold that the rollers
on the conveyor which come into play after the
filled bottles have been capped are not machinery
or apparatus used in the production of the bottled
products because the manufacture or production of
the bottled product has been completed before
such rollers come into use. Such a test, in my
opinion, is unreal. In an operation of this kind
means for removal of the product from the produc
tion equipment is as essential as any other part of
the machinery or apparatus used in the manufac
ture or production of the product and is used as
directly in the manufacture or production of the
product as any of the other parts. The cases and
carriers here in question fall easily within the
meaning of "apparatus" and are used in the pro
duction process at a time when the distribution
and warehousing operations have not yet begun.
The fact that the cases and carriers are subse
quently used in the warehousing and distribution
processes is not relevant to the question under
discussion.
Moreover, the cases and carriers serve a further
function in the "manufacture and production" pro
cess in being used to put bottles on the conveyor,
to hold them while being conveyed to the point
where they are removed and to hold them in
position for removal by the apparatus which car
ries out that function. Again these cases and carri
ers are carrying out an essential function of the
manufacture or production of the product and are
used directly in it. The system requires a supply of
empty bottles to be brought to the washing
^ Compare Irving Oil Limited, et al. v. The Provincial Secre
tary of The Province of New Brunswick, [1980] 1 S.C.R. 787,
at page 796; 109 D.L.R. (3d) 513, at page 518.
As to the propane gas tanks, it is clear that they are used
directly in the process of production for sale since it is at this
point that odour is added, a step without which the product
would not be fit for sale. As was pointed out in the Michelin
case the statutory requirement of direct use is fulfilled
irrespective of the percentage of use that may be ascribed to
the process of manufacture as opposed to other processes
such as storage and distribution.
apparatus. In the system described it is not con
ceivable that the procedure could be carried out by
putting or dumping individual bottles on the rollers
of the conveyor.
As the reasons of the Board do not mention this
feature of the use of the cases and carriers it
appears to me that the Board has erroneously
failed to consider the effect of the evidence and
that its finding is unsupportable and should not be
allowed to stand. In my opinion, the finding is
erroneous in law and should be replaced with a
finding that the cases and carriers are apparatus
for use in the manufacture or production of goods
within the meaning of Schedule III, Part XIII,
subparagraph 1 (a) (i) of the Act.
There remains the question whether the exemp
tion is foreclosed by section 1 of Part I of Schedule
III. That provision reads:
SCHEDULE III
PART I
COVERINGS OR CONTAINERS
1. Usual coverings or usual containers sold to or imported by
a manufacturer or producer for use by him exclusively in
covering or containing goods of his manufacture or production
that are not subject to the consumption or sales tax, but not
including coverings or containers designed for dispensing goods
for sale or designed for repeated use.
The Board's finding on this point was expressed
in the following paragraph of its reasons:
The Board finds that the product that the applicant sells is a
bottled soft drink, not, as urged by its representative in argu
ment, a bottled soft drink placed inside the hand carriers and
cases. The hand carriers and cases are for use by it in covering
or containing goods of its manufacture or production and
therefore would be exempt under section 1 of Part I of the
Schedule were it not for the exception to that exemption
provided by the words "but not including coverings or contain
ers ... designed for repeated use". The goods in issue, being
returnable, are clearly and admittedly designed for repeated
use and are therefore outside the exemption.
The cases and carriers in question are undoubt
edly designed for repeated use. They are in fact
used over and over again and last up to seven
years. But containing the bottled soft drinks of the
appellant's manufacture when in storage after they
have been produced and in the course of their
distribution to customers is but one of the uses to
which the cases and carriers are put. They are also
used to contain and return empty bottles to the
appellant and as well in the ways already men
tioned in the course of manufacture or production
of the bottled soft drinks. The cases and carriers
are thus not used "exclusively" in containing goods
of the appellant's manufacture or production.
They do not fall within Schedule III, Part I,
section 1 and are thus not affected by its exclusion
of containers designed for repeated use.
Further, even if it could be said that these cases
and carriers fell within section 1 of Part I of
Schedule III and are not exempted because of the
exclusion, the result is simply that the cases and
carriers are not exempted by that provision. They
are not on that account rendered ineligible for
exemption by any other provision of the Act under
which they qualify for exemption.'
In the result I would allow the appeal, set aside
the declaration of the Tariff Board and, exercising
the powers of the Court under subsection 60(4) of
the Excise Tax Act 6 and subparagraph 52(c)(î) of
the Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10],' declare that the plastic or wooden soft
drink cases and plastic hand carriers in issue are
apparatus sold to or imported by the appellant for
use by it in the manufacture or production of
goods within the meaning of subparagraph 1(a)(i)
5 Compare Irving Oil Limited, et al. v. The Provincial Secre
tary of The Province of New Brunswick, supra, footnote 4,
S.C.R. at page 796, D.L.R. at page 518:
Concerning the transformers, the basis on which the
exemption was denied by the Minister was simply untenable
in law. While it is proper to look at the various exemptions in
considering each of them, they are nevertheless independent.
6 60....
(4) The Federal Court may dispose of an appeal under this
section by dismissing it, by making such order as the Court
may deem expedient or by referring the matter back to the
Tariff Board for re-hearing.
52. The Court of Appeal may
(c) in the case of an appeal other than an appeal from the
Trial Division,
(i) dismiss the appeal or give the decision that should have
been given, or
of Part XIII of Schedule III of the Excise Tax Act
and are exempt from the consumption or sales tax
imposed by section 27 of that Act.
RYAN J.: I concur.
LE DAIN J.: I agree.
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.