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A-270-78
Deputy Minister of National Revenue for Customs and Excise (Appellant)
v.
Robertson Building Systems Limited (Respond- ent)
Court of Appeal, Pratte, Urie and Ryan JJ.— Ottawa, September 6 and 10, 1979.
Excise tax — Appeal from decision of Tariff Board holding that span rib rolls purchased by respondent and used in production of structural flooring sections exempt from tax imposed by s. 27(1) of the Excise Tax Act — Span rib rolls to be pieces of machinery and apparatus imported by producers for use by them directly in production of goods — Appellant contending that rolls sold respondent used exclusively to pro duce fabricated structural steel in conditions described in s. 26(4)(d) so that respondent not deemed to be a producer of goods and hence ineligible to benefit from the exemption — Whether or not the goods fall within the exemption provided for in s. 1(a) of Part XIII of Schedule III — Excise Tax Act, R.S.C. 1970, c. E-13, ss. 26(4)(d), 27(1), 29(1), Schedule III, Part XIII, s. 1 (a)(i).
APPEAL. COUNSEL.
P. B. Annis for appellant.
A. de Lotbinière Panet, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is an appeal, pursuant to sec tion 60 of the Excise Tax Act, R.S.C. 1970, c. E-13, from a decision of the Tariff Board holding that certain span rib rolls purchased by the respondent and used by it in the production of structural flooring sections were exempt from the tax imposed by section 27(1) of the Excise Tax Act.
Section 27(1) reads in part as follows:
27. (1) There shall be imposed, levied and collected a con sumption or sales tax of twelve per cent on the sale price of all goods
(a) produced or manufactured in Canada
(b) imported into Canada, payable by the importer or trans- feree who takes the goods out of bond for consumption at the time when the goods are imported or taken out of warehouse for consumption;
The provisions which, according to the Board's decision, would create an exemption in favour of the goods purchased by the respondent are found in section 29(1) and in section 1(a)(i) of Part XIII of Schedule III.
Section 29(1) provides that:
29. (1) The tax imposed by section 27 does not apply to the sale or importation of the articles mentioned in Schedule III.
As to section 1 of Part XIII of Schedule III, it reads in part as follows:
1. All the following:
(a) machinery and apparatus sold to or imported by manu facturers or producers for use by them directly in
(i) the manufacture or production of goods,
The Board held, in the decision under attack, that the rolls purchased by the respondent were exempt from tax as pieces of "machinery and apparatus . .. imported by ... producers for use by them directly in the ... production of goods".
It is common ground that the machinery pur chased by the respondent falls within the exemp tion provided for in section 1(a) of Part XIII of Schedule III if that provision is read in isolation. However, the appellant submits that a different conclusion must be reached if that section is read as it should be in conjunction with section 26(4) of the Act.
Section 26(4) reads in part as follows:
26....
(4) Where a person
(d) manufactures or produces from steel that has been pur chased by or manufactured or produced by that person, and in respect of which any tax under this Part has become payable, fabricated structural steel for buildings,
he shall, for the purposes of this Part, other than subsection 29(1), be deemed not to be, in relation to any such building,
structure, building sections, building blocks or fabricated steel so manufactured or produced by him, the manufacturer or producer thereof.
It is the appellant's contention that the rolls sold to the respondent were used exclusively to produce fabricated structural steel in the conditions described in section 26(4)(d). It follows, according to the appellant, that the respondent is deemed for the purposes of Part V of the Act (which includes section 29(1) and its reference to Schedule III) not to have produced that structural steel. The appel lant concludes that the respondent is not a pro ducer of goods and, for that reason, cannot benefit from the exemption provided for in section 1(a) of Part XIII of Schedule III.
The appellant's submission is, in my view, untenable. The sole problem to be resolved here is whether the goods in question fall within the exemption provided for in section 1(a) of Part XIII of Schedule III. In order for an article to fall within that provision, it must fulfil three condi tions: first, it must be a machinery or an apparatus, second, it must be purchased by a producer and, third, it must be purchased by the producer for use by it directly in the production of goods.
The appellant does not challenge the finding of the Board that the rolls purchased by the respond ent are "machinery and apparatus" within the meaning of the section, but merely contends that those rolls do not meet the second and third pre scribed conditions.
It is clear, in my view, that the second condition was met at the time of the purchase, which, in my view, is the time when the taxability of an article under section 27(1)(b) must be determined. At that time, it is common ground that the respondent was a manufacturer of a great variety of building products. Even if certain of those products may perhaps have fallen within section 26(4), it never theless remains that the respondent was a producer of goods and that the rolls here in question were purchased by a producer of goods.
As to the last condition prescribed by the sec tion, it was also clearly fulfilled at the time of the purchase by the respondent. The appellant
acknowledges in his factum that, at that time, the span rib rolls were purchased by the respondent with the intention, not only of using them in the production of structural steel for buildings, but also for making a range of other products. It follows, in my view, that it cannot be denied, in spite of section 26(4), that the rolls were pur chased to be used by the respondent in the produc tion of goods. The fact that, for reasons unknown, the rolls may not have been used for the purpose for which they had been purchased cannot support the conclusion that they had been purchased for a different purpose.
For those reasons as well as for the reasons given by the Board, I would dismiss this appeal with costs.
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URIE J.: I agree.
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RYAN J.: I agree.
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