Customs and Excise - customs duties - appeal from
Administrative Appeals Tribunal - importation of
vehicles having the characteristics of tractors -
whether vehicles "tractors" as defined in Tariff -
Source
Original judgment source is linked above.
Catchwords
Customs and Excise - customs duties - appeal from
Administrative Appeals Tribunal - importation of
vehicles having the characteristics of tractors -
whether vehicles "tractors" as defined in Tariff -
Judgment (1 paragraphs)
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rror in point of Law. I
do not think that 1t much matters whether this state of
affairs is described as one 1n wiich there is no evidence
to support the determinatio1 or as one in which th>
evidence 1S inconsistent with and contradictory of the
determination, or as one 1n which the true and only
reasonable conclusion contradicts the determination,
Rightly understood, eash phrase propounds the same test.
For my part, I prefer the last of the three, since I think
that 1t 1s rather misleading to speak of there being no
evidence to support a conclusion whon in cases such as
these many of the facts are likely to be neutral in themselves,
and only to take their colour from the combination of
circumstances 2n which they are found to occur."
I would comment in passing that I see the last sentence of the
extract from Lord Radcliffe's reasons as having particular
relevance to the facts of this present matter. It assists in
arriving at the proper decision on this aspect of the appeal.
However 1t 18 appropriate, because of the nature of the error
of law alleged here, that I draw attention to the reservations of
Dixon J. (as he then was) 2n Commissioner of Taxation v Miller (1946)
73 C.L.R. 93 when considering whether an appeal lay to the High
Court from a decision of a Board of Review. At page 104 he said:
"As the Board of Review 1S an administrative body 1t
may be doubted whether a decision by it can be said to
involve a question of law because it 1s based on
insafficient evidence. But, no doubt, if the facts coming
before the Board were incapable »f the legal comples.ion
Placed upon them, that would itnvelve a question of law
and the difference 1S not great."
This point was neither taken nor argued before us and T am
relieved by my ultimate decision not to Nave to consider it.
However in circumstances where the Triminal was ontitled to anform
atself on any matter in such manner as it thought fit (Administrative
Appeals T ibunal Act 1975 s.33(c)) and particularly whece as
here the parties expressly agreed that anything the Tribunal saw
on an inspection of the vehicles might be regarded as evilence, 1t
may 1n subsequent matters require consideration, Hereafter I shall
's
assume, probably without justification that Sir Owen Dixen's doubt
was unfounded.
For the applicant in this matter to succeed it 1S nacessary
that it establish that there are no reasonable grounds for the
Tribunal's finding that the vehicles should be classified within
paragraph 84.22.521, an other words that th=re 1s no evidence upon
which 1t could reasonably rely to support its conclusion that the
vehicles were imported in an incomplete or unfinished state. It is
quite irrelevant and nothing to the point that this court might
prefer to come to a different or contrary conclusion; the applicant
must establish that such conclusion is the only true amd reasonable
conclusion,
Any conclusion as to whether th> vehicles are ancomplete
or unfinished relates to the identification of the
vehicles and the subsequent question of the proper classification
under the Tariff of the same does not arise for consideration at
this stage. Unless there 1S no evidence upon which the Tribunal
can reasonably support its finding, 1t will not be in error ona
question 2f law. It follows that 1f there 1s some evidence upon
which the Tribunal can rely, the question whether the Tribunal
has correctly determined that the vehicles were imported in an
ancomplete or unfinished state 1S 32 question of fact upon which
there 1s no appeal to this court. As Diplock L.J. (as he then
was) said in Reg v Deputy Industrial Injuries Commissioner, Ex parte
Moore [1965)1 Q.B. 456 at p.488:-
"If at (the evidencé] is capable of having any probative
value, the weight to be attached to it 185 a matter for
the person to whom Parizament has entrusted the
responsibility of deciding the issue. The supervisory
jurisdiction of the High Court docs not entitle it to
usurp this responsibility and to substitute its own
view for his."
It 1s my firm view that this court when hearing appsals from
a Tribunal constituted for the purpose ».f reviewing decisions
of this nature, should adopt a restrained approach. Parliament
contemplated that only 1n exceptional circumstances should the
decision of the Tribunal not be the final decision. This doses not
mean that when an error of law is iduntified, the court should be
reluctant to intervene. In fact, 1t 1S under a duty to do so.
Rather 1t should heed the comments of Davies L.J. (as he then was)
an Reg v Industrial Injuries Commissioner, Ex parte Amalgamated
Engineering Union (No. 2) [1966] 2 Q.B. 31 at p.50:-
"T should like to echo the words of my Lord, Lord
Denning M.R., in saying that I deprecate the
practice, and hope it would not continue, of
attempting to magnify or inflate questions of
fact into questions of law and of trying to obtain
decisions from the courts on matters which the
legislature would appear to have thought suitable
for decision by the various bodies and authorities set
up under the Act of 1946."
As Lord Radcliffe said in Edwards v Bairstow supra at p.38:-
" ...by the system that has been sct up the commissioners
are the first tribunal to try an appeal, and in the
interests of the efficient administration of justice
their decisions can only be upset on appeal if thoy have
been positively wrong in law. 'The court 1s not a second
opinion, where there is reasonable ground for the first."
Lord Reid stated 1n Griffiths v J.P. Harrison (Watford) Ltd,
fi963 A.C. 1 at p.16 that only if "their decision was unreasonable"
is the applicant entitled to a second opinion. In the pres ont
circumstances such a first decision 15 only unreasonable if no
reasonable man could have come to the conclusion that the vehicle
was an zuncomplete or unfinished fork lift truck. In such c1rcumstan-
ces only does the necessary foundation for the intervention of
this court subsist. So long as there are one or more relevant
features, physical or otherwise, upon which a reasonable man might
rely for his opinion that the unit in question was such a truck,
the question remains a question of fact. The further question
might be posed, namely whether such features are sufficiontly
significant to warrant one conclusion rather than another, but this
1s a question of degree and again a question of fact. I refer to
Lord Radcliffe in Edwards v Balrstow supta at p.33. The relative
significance which a Tribunal attaches to particular features,
usually physical, and whether it was justified, 1s, so lony as
the features exist, a question of fact and should not be disturbed,
The Australian Gas Light Co v The Valuer-General 40 S.R. (N.S.W.)
126 per Jordan C.J., at p.138:
"If however, the facts so inferred are capable of being
regarded as either within or without the description,
according to the relative significance attached to tho,
a decision either way by a tribunal of fact cannot br
disturbed by a superior Court which can determine only
questions of law."
It was accepted before us that the expression "Incomplcte
and unfinished" was not a term of art, being a popular and not
a technical expression. Certainly nou evidence was heard as to
any different meaning in the commetcial world. Thus the common
understanding as to what the words m-an 1s not a question of law
but of fact. In the same way that McTiernan J,, 1n Henderson v
Forbes 49 A.L.J.R. 335 at p.336 was of the opinion that whether
goods would be characterised as "coatcd'" was a question of fact, so
whether the vehicles 1n question here would be characterised or
described as incomplete or unfinished 1s a question of fact. Thus
the threshold question for determination 1s whether there was
available any evidence upon which a reasonable man might rely in
identifying the vehicles as incomplete and unfinished. In my
opinion such evidence 1S available.
The contest 1s whether the vehicles should be identified as
complete tractors or incomplete or unfinished fork lift trucks,
However in the circumstances that the Tribunal's decision is that
they are incomplete or unfinished fork lift trucks, the quastion
for this court 1S more correctly stated as whether there 15 some
evidence to support the finding that they are incomplete and un-
finished fork lift trucks or whether the conclusion that they are
complete tractors 1s the only true and reasonable conclusion,
An interesting discussion in the use of the word "unfinished"
1n customs duty legislation 1s to be found in Newman Manufacturing
Company v Marrable {193 2 K.B. 297 where the articles under
consideration were described by the plaintiff as beads, and by the
defendant as unfinished buttons. It was cleat, as Horridge J.,at p.20:
found, that "they could not be used as they are as buttons without
the addition of some sort of shank. It 1s unquestionable that they
were imported for the purpose of having shanks attached to them,
and being made into complete buttons." His Lordship's conclusions
were in the following terms:
--. 2m my view the statute was directed against those
who imported goods which were not quite buttons, but
upon which the bulk of the work had been done abroad,
and very little remained to be done by the manufacturer
an England. I think that was the reason why the words
'buttons... whether finished o1 unfinished' were used
an this section.
In my judgment these articles were unfinished buttons;
they were going to be buttons, and they were going
to have a shank put into them. The insertion of that
shank only involved one-seventh of the total cost of
the finished button, This article with a hole ready
to have a shank put into it was an unfinished button
within the meaning of s.9 of the Finance Act, 1928."
In the present case there are certain facts which it could
be said would have entitled or justified the Tribunal in
concluding that the vehicles were tractors. But such a finding
does not necessarily mean that that conclusion is the true and
only reasonable one. The Tribunal p5inted to sther facts, namely
the large counter weight which was on the vehicle, the purpose
of which was to make the vehicle more stable when it was lifting
material, and which although it would aid the vehicle in pushing a
load, was not attached for this purpose. Likewise the presence of
two hydraulic rams at the front of each vehicle, again fitted
for the purpose of assisting a lifting operation. There was also
evidence that each vehicle had been adapted to accept a mast and
also forks, which attachments were essentially for the purpose
of lifting material. For the purpose of assessing the significance
1t would attach to those features, the Tribunal perfectly properly
took into account the capabilities of the vehicle as a tractor,
1.e. its capacity to haul or push. In this regard it found that
the hauling or pushing of which 1t was capable was "of the most
ad hoc kind", If it were pushing the driver would ba facing the
opposite direction to that 1n which the vehicle was travelling.
If 1t were pulling from the steering wend of the vehicle, stcering
would be difficult in slippery or reugh conditions. Likewise
the counter weight, which was "robust enough to push anything along"
if pushed at the steering end, required that the object to be pushed
be of the right shape and in the right position to enable the counter
weight to make contact with it.
In these circumstances it 1S not possible to say that there was
no evidence to support the decision or that all the evidence was
inconsistent with and contradictory of the decision. This court
might feel that such a decision 1S unsatisfactory and that too
much significance was attached by the Tribunal to these features.
However in the laght of the principles abovementioned it can not say
that 1t 1S unreasonable in circumstances where there 15 sume
evidence, the weight or significance of which the Tribunal is
alone entitled to assess, to support the conclusion that the
vehicles were imported 1n an incomplete state. It must follow that
they had some of the characteristics of lifting machinery and
whether such characteristics were suffic1rently significant to enable
the conclusion that they had "the essential character" 1s a question
of degree and thus of fact.
I agree the appeal should be dismissed.
=
{ certify that this and the / preceding
pages are a true copy of the Reasons for
Judgment of Mr Justice YS
_ - -
Dated: 42 haquok, 98>
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G. 4 of 1980
GENERAL DIVISION
Between:
har HODGE (AUSTRALIA)
TX.
Applicant
and -
THE COLLECTOR OF CUSTOMS,
NEW SOUTH WALES SS
Respondent
CORAM: Smithers, Fisher and Sheppard JJ.
REASONS FOR JUDGMENT
va A r
SHEPPARD J.: RAR uc wal (g go
This is an appeal pursuant to s.44 of the Administrative
Appeals Tribunal Act, 1975, against the decision of the
Administrative Appeals Tribunal made on 24th December, 1979.
The decision was given in respect of a dispute between the
applicant and the Collector of Customs as to the correct amount
of customs duty to be paid in respect of the importation by
the applicant into Australia of certain goods. The applicant
is a company carrying on business in Australia. It is an
importer of machinery of various kinds.
The goods the subject of the dispute may be described
neutrally as vehicles. Four are involved. One was
entered for home consumption on 3lst May, 1978, two on
28th November, 1978, and the fourth on 3rd April, 1979.
The Collector originally decided that the first vehicle
was properly classified as falling within paragraph
84,.23.311 of the Customs Tariff 1966 (hereinafter referred
to as the Tariff). He subsequently decided that the
correct classification of that vehicle and the remaining
three vehicles was that they were within paragraph
84.22.5211. The applicant on the other hand, eventually
contended (it is immaterial to refer to its earlier con-
tentions) that the vehicles fell within paragraph 87.01.31.
The description of the vehicles is not in contest. To
a layman each of the vehicles bears general resemblance to a
tractor, They were so described in the evidence of Mr. S.R.
Wood who is the applicant's marketing manager for the
vehicles. Each vehicle has four wheels - two large driving
wheels at the front and two smaller wheels at the back. The
engine is behind the driver who sits on a seat close to the
front of the vehicle. It is directed by a steering wheel
which operates the two smaller wheels at the rear. The
front wheels are fixed and do not change direction. The
wheels are fitted with large rubber tyres. At the rear is
a draw hook that would enable another vehicle, for example a
trailer, to be hooked on and pulled. Also at the rear,
underneath the engine of the vehicle, is a large counterweight.
At the front of each vehicle are fitted two hydraulic rams.
All vehicles are similar. They differ only in their
capacities. Two have a capacity of 4 tonnes, one a capacity
of 2.5 tonnes and the other a capacity of 2 tonnes.
The vehicles were imported from France. They were
manufactured in Ancenis by a company Braud & Faucheux S.A..
The manufacturer took as a base or starting point what is
known as a skid unit acquired either from the Ford Motor
Company or International Harvester. The skid unit comprised
an engine, a gear box, a differential and transmission to
two stub axles which could be fitted with driving wheels.
The name "skid unit" comes from the letters S.K.D. which
stand for Semi Knocked Down.
The skid unit is fitted to a very strong chassis. The
housing over the engine is of sturdy construction as are the
wheels and other parts fitted by the manufacturer. The
tyres fitted to the wheels are tractor tyres.
In the condition in which the vehicles were imported
there were no attachments other than the counterweight, towing
hook and hydraulic rams to which reference has been made.
There were holes bored in a shaft at the rear of the vehicles
to which could be attached a bar or chains for pulling. The
counterweight itself could be used for pushing. But the
evidence establishes that each of the vehicles the subject of
this appeal and a large number of others imported into
Australia were brought in to be used as what are known as
site lifts. They were to be fitted with a lifting mast and
used as a fork lift truck not so much on smooth surfaces
such as would be found in warehouses or factories, but on
farms or building sites where the terrain is rough and
uneven. The purpose of the counterweight is to make the
vehicle stable when it is lifting. If the vehicle were
to be used only for pulling or pushing there would be no
need for a counterweight to be fitted.
The evidence establishes that the vehicles are used
in overseas countries for a wide variety of purposes
including agricultural purposes, They are fitted with
many different attachments although from the literature
which was in evidence before the Tribunal many used for
agricultural purposes have lifting masts attached to them.
The use of the vehicles in Australia has not been so wide
ranging. The evidence of Mr. Wood establishes that most,
if not all, the vehicles imported into Australia, including
the four in question, were intended to be used as fork lift
trucks on building sites.
The history of the development of the vehicles is
important in the light of some submissions which were made
by the applicant. The vehicles were apparently developed
from a McCormick agricultural tractor. Originally the com-
plete tractor including bonnet and shield was used. The
driver's seat and steering wheel were reversed so that the
vehicle was steered from what was originally the rear of the
tractor rather than the front. A mast articulated on the
driving axle was added as was the counterweight at the rear.
The original chassis was reinforced. Later it was only the
skid units which Braud @ Faucheux used as a basis for
the manufacture of the vehicles, The balance of the
units were fabricated by the company. Later still the
skid units themselves were slightly modified in order
to satisfy the needs of the company's tractors, namely,
heavy loads and rough terrain. The units imported
into Australia are not equipped with lifting masts or
other accessories because under the terms of the contract
between the company and the applicant the applicant
purchases these items separately.
The Tribunal held that the vehicles were properly
classified under paragraph 84.22.521, I pause to say
that I have had some difficulty in knowing how properly
to describe the various items, using that expression
neutrally, in the Tariff. I do not find the provisions
of s.13(2) of the Tariff (which defines "item", "sub-item",
"paragraph" and "sub-paragraph") particularly clear on
this question when its provisions are reed in conjunction
with the schedules to the Tariff. I have tried to use
what I believe to be the nomenclature of the legislature.
If I have failed in this endeavour, my meaning will
nevertheless be clear.
Paragraph 84,22.521 is in Chapter 84 of the Tariff.
Chapter 84 is in Division XVI which is entitled "Machinery
and Mechanical Appliances; Electrical Zquipment; Purts
Therefor", Chapter 84 is entitled "Boilers, Machinery
and Mechanical Appliances; Parts Therefor", Item 84,22
De
specifies:
"Lifting, handling, loading or unloading
machinery, telphers and conveyors, not
being machinery falling within item 84,23",
It is not relevant to refer to item 84.23. After item
84,22 there follow a number of paragraphs referring to
various kinds of lifting, handling, loading and unload-
ing machinery. These are not material. Paragraph
84,22,52 is, "Other machinery, but not including parts
therefor specified in paragraph 84,22,53", That para-
graph has no relevance. The other machinery referred
to in paragraph 84.22.52 is machinery of the kind
specified in item 84,22, that is lifting, handling,
loading or unloading machinery, telphers and conveyors.
Paragraph 84,22.521 applies to machinery which is within
paragraph 84.22.52 and which does not have a working
weight of more than 50 tonnes. None of the vehicles here
in question had a working weight of more than 50 tonnes.
It was the applicant's submission that the vehicles
could not as a matter of law fall within paragraph 84,22.521
because at the date of their importation they could not
be used for lifting, handling, loading or unloading.
Each was capable only of pulling or pushing another
vehicle or load.
As has been mentioned the applicant contended that the
vehicles were properly classified within paragraph 87.01.31.
That paragraph is within Chapter 87 of the Tariff which
is within Division XVII which is entitled "Vehicles, Aircraft
and Parts Therefor; Vessels and Certain Assorted Transport
Equipment." Chapter 87 is entitled "Vehicles, Other Than
Railway or Tramway Rolling Stock and Parts Therefor." Item
87.01 specifies tractors (other than those falling within
Item 87.07) whether or not fitted with power take-offs, winches
or pulleys. The submissions of the parties were such as
not to make it relevant to refer to item 87.07.
Paragraph 87,01.31 specifies tractors which are:
"Agricultural wheeled tractors and other wheeled
tractors that are derivatives of agricultural
tractors:
Having a power of, or exceeding, 15 kilowatts at
the power take-off".
The notes to Chapter 87 define the expressions "tractor"
and "agricultural tractor". Note 2 defines "tractor" to
meani-
"a vehicle constructed essentially for hauling or
pushing another vehicle, appliance or load, whether
or not the first-mentioned vehicle contains sub-
sidiary provision for the transport, in connexion
with the main use of the tractor, of tools, seeds,
fertilisers or other goods".
Note 7 defines "agricultural tractor" to mean:
"a two-wheel drive tractor of a kind used solely
or principally in agriculture, horticulture or
viticulture".
There is another part of the definition to which it is
unnecessary to refer.
At the hearing before the Tribunal it was the applicant's
contention that the vehicles were either agricultural tractors
within the definition of that expression in Note 7, or were
derivatives of agricultural tractors. At the hearing before
this Court the submission that the tractors were
agricultural tractors was abandoned but it was contended
tnat they were derivatives of agricultural tractors.
It was said that the Tribunal's decision that they were
not derivatives of agricultural tractors was erroneous
in point of law,
It was the primary submission of the Collector that
no point of law arose in the case and that the determin-
ations of the Tribunal which were challenged were deter-
minations of questions of fact against which there was no
appeal to this Court. The Collector further submitted
that the Tribunal nad, in any event, made no error of law
in arriving at its decisions.
There are contained in Part I of the first schedule
to the Tariff rules for the interpretation of Part II of
that schedule. The relevant provisions of the Tariff
are contained in Part II of its first schedule. The
way in which these rules are to be used is provided for
in s.14 of the Tariff itself. It is unnecessary to refer
to the detail of s.14, but one of the rules should be
mentioned. It is Rule 2(1)(a) which is as follows:
"2,(1) A reference in an item (including a
reference in a sub-item, paragraph or sub-
paragraph) to goods of a particular kind shall
be read as including a reference to -
(a) goods that are imported in an incomplete
or in an unfinished state but have the
essential character of goods of that kind;"
I deal first with the yuestion of whether the Tritunal's
decision that the vehicles were not within paragraph 87.01.31
was erroneous in point of law. In order to succeed
the applicant must demonstrate that the evidence is
such that the vehicles must fall within the words of the
paragraph. In this respect I refer to Currie v. Inland
Revenue Commissioners (1921) 2 K.B.332, where Lord
Sterndale said (p.336):
"There may be circumstances in which nobody
could arrive at any other conclusion than
that what the man was doing was carrying on
a profession; and therefore looking at the
matter from the point of view of a judge
directing a jury, the Judge would be bound to
direct them that on the facts they could only
find that he was carrying on a profession,
That reduces it to a question of law. On the
other hand, there may be facts on which tne
direction would have to te given the other way.
But between those two extremes there is a very
large tract of country in which tne matter
becomes a question of degree; and where that
is the case the question is undoubtedly in my
opinion, one of fact; and if the Commissioners
came to a conclusion of fact without having
applied any wrong principle then their decision
is final upon the matter,"
I refer also to Lombardo v. Federal Commissioner of
Taxation (1979) 28 A.L.R. 574 at p.576.
I think there is a question as to whether the applicant's
submission raises a question of law. In the view thet I
take of the matter, however, I do not consider it necessary
to determine that matter. As earlier mentioned the
applicant did not argue before this Court that the vehicles
were agricultural tractors, but it did argue that they
were derivatives of agricultural tractors, I confess to
finding it difficult to understand what is meant by the
expression "derivatives of agricultural tractors". I
think counsel for the Collector laboured under the same
difficulty when he endeavoured to provide examples of
tractors which would fall within that classification. But what-
ever it is that the expression may cover, I am satisfied that
the vehicles here in question are not derivatives of
agricultural tractors in the sense in which that expression
is used in the relevant paragraph.
It was submitted by counsel for the applicant that
they were derivatives of agricultural tractors because they
were modelled on or based upon the old McCormick agricul-
tural tractor, That was said to be so notwithstanding
that no more than the skid unit used in the manufacture of
present day agricultural tractors was now used, Counsel
referred to a number of dictionary meanings of the words
"derived" and "derivative" and showed that one meaning of
the expression "derived from" was "coming from a source",
It was submitted that this was the meaning which the word
derivative had in the relevant provision and that the
relevant source was an agricultural tractor,
I agree that the expression "derived from" means
"coming from a source", However, the source from which
the vehicles here in question had to come in order to fall
within the paragraph was an agricultural tractor, It is
true, historically speaking, that the vehicles developed,
firstly by the adaptation of an old McCormick agricultural
1c,
tractor, then by the taking of the skid unit from such
a tractor and finally by the manufacture of a skid unit
more particularly suited to the needs of a vehicle
intended by the manufacturer to be able to stand up to
the hard work for which these vehicles are designed. But
I do not think that the paragraph in question is speaking
of the historical development of agricultural tractors.
Rather it is concerned to specify an article which itself
has been derived from an existing agricultural tractor.
To my mind the article, whatever it is, must have been
developed from an actual agricultural tractor, not
developed from such a tractor in the sense of being modelled
upon something which in former times was an agriculturel
tractor or part of such a tractor, It is for that reason
that I am of the opinion that the vehicles do not fall
within paragraph 87.01.31.
The next question is whether the Tribunal was in
error in point of law in holding that the vehicles fell
within paragraph 84,22.521 of the Tariff. In the con-
dition in which the vehicles were imported they were
plainly not telphers nor conveyors, Nor, upon the uncon-
tradicted description of the vehicles in Mr. Wood's
evidence earlier recounted, does it readily occur to one
that they are properly described, in the condition in
which they came into this country, as lifting, handling,
loading and unloading macninery. In their condition
upon importation they could not be used for any of those
ll.
purposes. The Tribunal itself was of that view. It
was able to reach the conclusion that the vehicles
were within the paragraph only by reason of the operation
it considered interpretative rule 2(1)(a) to have. The
provisions of that rule have been earlier set out.
The question is, firstly, whether the vehicles
were imported in an incomplete or in an unfinished state
and, if that be so, secondly, whether they have the
essential character of lifting, handling, loading or
unloading machinery. An appeal lying only upon a question
of law the applicant will, upon the basis of the principles
earlier adverted to, fail unless it be demonstrated that
on no basis could tne Tribunal have reached the con-
clusion that the vehicles were imported in an incomplete
or unfinished state, or, if it was open to tne Tribunal
to hold that they were in such a state, that the vehicles
(being in that state) could not on any basis be said to
have had the essential character of lifting, handling,
loading or unloading machinery.
The critical paragraph of the Tribunal's reasons for
decision is as follows:
"The findings set out above and our description
of the units make it clear that the machine has
been designed for the purpose of adding various
implements or accessories to carry out a wide
variety of functions. The units are clearly used
with many different accessories attached carrying
out the many functions which they were constructed
to perform, we agree with the sutmission that the
modifications performed by the supplier upon the
'skid units' purchased from 'International
Harvester' and 'Ford Tractor Division' reveal that
"the imported machines, although incomplete,
have been committed to being completed so as
to be able to perform the functions specified
within item 84,22 and were sufficiently com-
plete to be identified as belonging to the
classification in question. It is clear that
the imported units have been adapted to accept
a mast and forks for lifting. Also the attach-
ment of hydraulic rams indicates that the
machines have been constructed for lifting
purposes. Altogether we consider that the
units, although incomplete and unfinished,
have a character which is on the evidence
sufficient to support the classification con-
tended for by the Collector,"
There is no express mention in that paragrapn of the
counterweight, but I would regard the statement that the
vehicles had been adapted to accept a mast and forks for
lifting as an indirect reference to it. The evidence
establishes that the only purpose of the counterweight
is to enable the vehicles to be fitted with an attacnment
at the other end which will either itself be heavy or
capable of lifting heavy weights. The weight at the rear
of the vehicle would counter the effect of such a loading
and thus keep the vehicle stable. If the vehicle were not
fitted with a lifting attachment or an attachment which
itself was of substantial weight, there would be no purpose
in the vehicle being fitted with the counterweight. For
similar reasons there is no purpose either in its being
fitted with the hydraulic rams unless something be added.
It 1s the presence of the counterweight and the hydraulic
rams which lends support to the contention that the
vehicles were imported in an incomplete or unfinished
state. On the other hand the vehicles could te driven
and steered. They were capable of pushing or pulling
objects including other vehicles. Those matters could
suggest that the vehicles were complete in themselves at
the time of importation.
A tribunal entrusted with deciding how the vehicles
should be characterised for the purposes of the Tariff
was obliged to take all those considerations into account
in reaching a conclusion, Plainly the Tribunal here did
so. Having done so it reached the conclusion that the
vehicles were imported in an incomplete or unfinished
state but had the essential character of goods described
in the relevant paragraph of the Tariff. The question
is whether it was open to the tribunal to come to those
conclusions. In resolving that question the principle
which is to be applied is that stated by Lord Sterndale
in Currie v. Inland Revenue Commissioners ((1921) 2 K.B.
at p.336) earlier cited.
Having reflected upon the matter at some length I
have reached the conclusion that, by reason of the presence
of the counterweight and the hydraulic rams, it was open
to the Tribunal, as the tribunal whose decisicns on
questions of fact were final, to come to the conclusion
that the vehicles were imported in an incomplete, if not
unfinished, state, notwithstanding that in many respects
they had the features of a complete and finished article.
Once that conclusion is reached, 1t follows, almost as a
corollary, that the vehicles had the essential character
14,
ea we
W
of lifting machinery. To hold otherwise would be to put
on one side the conclusion already arrived at, namely that
the vehicles had been imported in an incomplete state.
I should add that in reaching my conclusions I have
borne in mind that it is the state or condition of the
goods at the time of importation that is the determining
factor. The test is an objective one. The purpose of the
manufacturer or exporter on the one hand or the importer
or user on the other can have no relevance. Otherwise rates
of duty for identical articles would vary depending upon
what their proposed use was to be. It is the intrinsic
nature of the article itself which has to be considered.
That is not to say, however, that it will not be relevant to
take into account in determining the nature of an article
and the question of whether it is in an unfinished or incom-
plete state the ordinary use to which such an article might
reasonably be expected to be put. What ought to be left
out of account is the particular purpose which an exporter
or importer may have had in mind for the article in question.
Nothing in the reasons of the Tribunal leads me to think
that it misdirected itself in relation to the matter I
have last mentioned.
For the reasons I have given I am of opinion that the
appeal should be dismissed and the decision of the Tribunal
affirmed. The applicant should pay the respondent's costs.