Pinard
J.:
This
is
an
application
for
judicial
review
of
a
decision
of
the
respondent
dated
May
16,
1995,
rejecting
the
applicant’s
request
for
a
refund
of
certain
customs
duties.
The
applicant
made
the
application
for
refund
on
February
27,
1995,
as
transaction
#01131-200224093
pursuant
to
section
77(1)
of
the
Customs
Tariff
Act
(“the
Act”).
The
applicant
seeks
an
order
in
the
nature
of
mandamus
compelling
the
respondent
to
grant
the
applicant’s
refund
under
section
77
of
the
Act,
or
in
the
alternative,
an
order
setting
aside
the
decision
of
the
respondent.
The
Legislative
Framework
Under
Part
II,
Division
III
of
the
Act,
which,
for
convenience,
is
reproduced
in
Schedule
A
appended
hereto,
importers
may
qualify
or
apply
for
relief
from
payment
of
customs
duties
on
machinery
or
equipment
they
bring
into
Canada,
when
such
goods
are
not
available
from
production
in
Canada.
The
policy
objective
of
the
Machinery
program,
as
it
is
called,
is
outlined
in
Memorandum
D8-5-1
put
out
by
Revenue
Canada
.
It
states:
The
objective
of
the
Machinery
Program
is
to
increase
efficiency
throughout
Canadian
industry
by
enabling
users
to
acquire
advanced
equipment
not
obtainable
from
Canadian
production,
yet
affording
Canadian
manufacturers
tariff
protection
on
the
machinery
and
equipment
they
produce
as
soon
as
they
are
in
a
position
to
supply.
To
establish
eligibility
for
duty
relief
under
Part
II,
Division
III
of
the
Act,
the
machinery
or
equipment
must
be
classified
under
a
tariff
item
enumerated
in
Schedule
VI
to
the
Act
(sections
73
and
74
of
the
Act),
and
it
must
appear
on
a
list
established
by
the
Minister
indicating
that
the
good
is
not
available
from
production
in
Canada
(section
75
of
the
Act).
If
the
item
of
machinery
or
equipment
does
not
appear
on
the
Minister’s
list,
section
76
of
the
Act
provides
that
an
application
for
remission
may
be
made,
accompanied
by
evidence
satisfactory
to
the
Minister
that
the
machinery
and
equipment
is
not
available
from
production
in
Canada.
According
to
Paragraph
33
of
Memorandum
D8-5-1:
When
goods
are
recommended
for
remission
of
customs
duties,
an
approved
application
will
be
returned
to
the
applicant
containing
an
authorization
number
and
specifying
the
time
period
covered
by
the
remission.
(my
emphasis)
Finally,
Paragraph
36
of
Memorandum
D8-5-1
deals
with
assignment
by
applicants
to
another
party
of
their
right
to
remission
in
respect
of
their
approved
application.
It
reads
as
follows:
Transferability
36.
Applicants
may
assign
to
another
party
their
right
to
remission
in
respect
of
their
approved
application.
Such
assignment
should
be
in
the
form
of
a
letter
from
the
applicant
to
the
assignee,
indicating
the
description
and
quantity
of
goods
remitted
which
the
assignment
covers.
This
letter
or
a
copy
thereof
should
accompany
the
Notice
of
Remission
when
presented
at
Customs
for
clearance
or
refund.
It
should
be
noted,
however,
that
the
responsibility
for
the
authorization
remains
with
the
applicant
and
in
case
of
cancellation,
it
is
the
applicant’s
duty
to
advise
all
assignees
of
the
change
in
status
of
the
application.
Note:
This
provision
does
not
apply
to
refunds
under
section
77
of
the
Customs
Tariff
where
the
importation
occurred
more
than
3
months
prior
to
the
receipt
of
the
application
by
the
Machinery
and
Equipment
Advisory
Board.
Also,
transferability
is
not
permitted
for
special
automotive
remissions
as
described
in
par-
agraph
19(c)
of
this
Memorandum,
or
in
the
case
of
production
part
applications.
In
addition,
once
an
application
is
cancelled,
it
is
no
longer
transferable
to
another
party.
It
should
also
be
noted
that
the
letter
of
assignment
shall
be
considered
to
not
be
in
force
after
the
expiry
date
of
the
application,
after
the
cancellation
date
of
the
application
or
after
the
date
the
applicant
named
in
the
application
goes
out
of
business.
(my
emphasis)
Facts
On
February
22,
1990,
the
Secretary
of
the
Machinery
&
Equipment
Advisory
Board
(MEAB)
signed
an
Application
for
Duty
Remission
under
the
Machinery
Program
(Application
#2037644),
submitted
by
W.C.I.
Canada
Inc.
in
respect
of
certain
goods
it
imported
on
January
1,
1988.
The
Approved
Application
or
Remission
Order
specified
that
the
remission
was
to
be
effective
from
May
1,
1989
to
February
28,
1995.
By
letter
dated
February
24,
1995,
W.C.I.
Canada
Inc.
(“W.C.L”)
purported
to
assign
to
the
applicant
SMC
Pneumatics
(Canada)
Ltd.
(“SMC”)
the
use
of
W.C.L’s
approved
machinery
remission
application
#2037644
“for
an
unlimited
quantity
of
solenoid
valves
for
the
effective
period
of
this
authority”.
The
letter
indicated
that
“[T]his
authorization
is
provided
in
accordance
with
paragraph
36
of
Memorandum
D8-5-1,
published
by
Revenue
Canada,
Customs,
Excise
and
Taxation”.
On
February
27,
1995,
SMC
submitted
a
refund
claim
to
the
Minister
of
National
Revenue
(“the
respondent”)
on
the
basis
of
remission
order
#2037644.
On
May
16,
1995,
the
respondent
completed
a
Detailed
Adjustment
Statement,
whereby
the
applicant’s
refund
claim
was
rejected
in
the
following
terms:
THIS
CLAIM
IS
CANCELLED.
TIME
LIMIT
IS
NOT
PROTECTED.
REMISSION
APPLICATION
#2037644
ISSUED
IN
FAVOUR
OF
W.C.I.
MANUFACTURING
IS
A
PRODUCTION
PARTS
APPLICATION.
AS
SUCH
IS
NOT
TRANSFERABLE
PER
PARAGRAPH
36
(NOTE)
OF
D8-5-1.
S.
SCRIVENS.
416.954.0771.
On
June
16,
1995,
the
applicant
filed
the
originating
notice
of
motion
in
the
present
application.
The
Issues
In
my
view,
the
issues
in
this
matter
have
been
well
articulated
by
the
respondent
and
are
as
follows:
a.
Generally,
must
the
respondent
permit
the
transfer
of
a
remission
order
from
one
importer
to
another,
where
the
goods
in
question
are
production
parts?
b.
Is
the
decision
refusing
the
refund
affected
by
the
fact
that
information
on
the
respondent’s
administrative
policy
on
non-transferability
of
remission
orders
on
production
parts
was
first
published
after
the
remission
order
at
issue
was
granted
(though
before
it
was
transferred
to
the
applicant)?
Analysis
With
respect
to
the
first
issue,
the
applicant’s
first
contention
is
that
there
is
nothing
on
the
face
of
approved
application
or
remission
order
#2037644
to
indicate
that
it
applies
only
to
production
parts.
Accordingly,
the
prohibition
against
transfers
of
production
part
remission
orders
found
in
paragraph
36
of
Memorandum
D8-5-1,
ought
not
to
apply
to
the
applicant’s
refund
claim
(submitted
February
27,
1995;
transaction
#01131-
200224093),
and
was
an
irrelevant
basis
for
rejecting
that
claim.
It
must
be
noted,
however,
that
the
parties
are
now
agreed
that
Exhibit-2
of
the
Affidavit
of
Denise
Neubauer
dated
June
16,
1995,
(the
“Application
for
Duty
Remission
Under
the
Machinery
Program
Part
I”)
submitted
by
the
applicant
should
have
included
the
second
page,
designated
as
Part
II.
In
Part
Il,
a
person
applying
for
duty
remission
is
asked
to
answer
several
questions
pertaining
to
their
claim.
The
relevant
question
for
the
present
issue
reads
as
follows:
2.
Indicate
if
application
covers
(a)
a
complete
machine
for
use
in
manufacture
or
for
resale
(b)
repair
or
replacement
parts
for
machinery
imported
under
remission
of
duty
but
which
the
replacement
parts
provision
has
expired
(c)
production
parts
to
manufacture
machines
for
re-sale.
(my
emphasis)
In
application
#2037644,
W.C.I.
Manufacturing
answered
the
question
as
follows:
These
items
would
be
deemed
production
components.
As
also
admitted
by
the
parties,
only
Part
I
of
such
an
approved
Application
for
Duty
Remission
is
returned
to
the
successful
applicant,
while
Part
II
is
retained
by
the
Minister.
In
my
view,
this
practice
does
not
in
itself
render
the
information
contained
in
Part
II
irrelevant
to
that
contained
in
Part
I
once
the
application
is
approved.
Clearly,
Part
II
is
part
of
application
#2037644
in
this
matter
and,
thus,
application
#2037644
indicates
“on
its
face”
that
it
applies
to
“production
components”
or
production
parts.
Conse-
quently,
absent
any
evidence
to
the
contrary,
Part
IT
in
the
present
case
provides
evidence
that
the
goods
in
question
listed
in
Part
I
are
production
parts,
the
transferability
of
which
is
not
permitted
by
virtue
of
Paragraph
36
(Note)
of
Memorandum
D8-5-1.
The
applicant
further
alleges
that
the
prohibition
against
transferability
of
goods
that
would
otherwise
qualify
for
remission
of
duty
is
an
irrelevant
and
extraneous
consideration
that
is
inconsistent
with
the
statutory
intent
of
the
Machinery
program.
Moreover,
the
applicant
submits
that
there
is
nothing
in
either
the
Act
or
the
Regulations
that
confers
the
Minister
with
the
power
to
prohibit
the
transferability
of
Machine
Remission
Orders
in
general,
or
those
pertaining
to
production
parts
in
particular.
I
do
not
agree.
The
applicable
legislative
framework
indicates
that
remissions
under
the
Machinery
program
may
be
instituted
in
two
ways.
First,
the
Minister
of
National
Revenue
may
establish
a
list
of
machinery
and
equipment
that
in
his
opinion,
having
regard
to
certain
specified
criteria,
is
not
available
from
production
in
Canada.
No
customs
duties
are
payable
in
respect
of
machinery
and
equipment
that,
at
the
time
of
importation,
is
included
on
this
list
(sections
74
and
75
of
the
Act).
In
addition,
the
Minister
may
in
certain
circumstances
remit
customs
duties
in
respect
of
machinery
and
equipment
not
included
on
the
list
(section
76
of
the
Act).
As
it
appears
from
the
words
“and
the
Minister
is
of
the
opinion”
and
“the
Minister
may
remit”
used
in
subsection
76(1)
of
the
Act,
and
the
words
“satisfactory
to
the
Minister”
used
in
subsection
76(4)
of
the
Act,
the
granting
of
such
remissions
by
the
Minister
is
highly
discretionary.
Though
this
discretion
must
be
exercised
within
certain
limits,
there
is
no
obligation
to
exercise
it.
Furthermore,
as
indicated
in
subsection
76(2)
of
the
Act,
the
Minister
may
impose
conditions
on
the
granting
of
such
remissions.
The
duty
imposed
upon
the
Minister
to
grant
a
refund,
in
section
77
of
the
Act,
applies
only
in
relation
to
remissions
granted
under
section
76
in
respect
of
machinery
and
equipment
not
included
on
the
list
established
by
the
Minister.
I
fully
agree
with
the
respondent
that
it
is
as
an
exceptional
matter
of
administrative
convenience
that
the
respondent
permits
certain
remissions
granted
under
section
76
to
be
transferred
to
other
importers
by
the
original
applicant.
This
practice,
as
noted
by
the
applicant
in
its
Memorandum
of
Fact
and
Law,
enhances
the
efficiency
of
the
program
by
reducing
the
number
of
applications
being
submitted
for
the
same
goods.
That
this
administrative
practice
is
authorized
by
the
legislative
provisions
set
out
in
Part
II,
Division
III
of
the
Act
is
not
in
issue.
However,
these
provisions
do
not
in
any
way
require
the
establishment
of
this
practice,
nor
do
they
in
any
way
fetter
the
manner
in
which,
within
that
authority,
the
practice
may
be
defined
or
implemented.
In
Maple
Lodge
Farms
v.
Canada^,
the
Supreme
Court
of
Canada
considered
the
role
of
policy
guidelines
in
the
context
of
the
Export
and
Import
Permits
Act*.
Mr.
Justice
McIntyre
made
the
following
comments,
at
pages
6,
7
and
8:
It
is
clear,
then,
in
my
view,
that
the
Minister
has
been
accorded
a
discretion
under
s.
8
of
the
Act.
The
fact
that
the
Minister
in
his
policy
guidelines
issued
in
the
Notice
to
Importers
employed
the
words:
“If
Canadian
product
is
not
offered
at
the
market
price,
a
permit
will
normally
be
issued;
...”
does
not
fetter
the
exercise
of
that
discretion.
The
discretion
is
given
by
the
Statute
and
the
formulation
and
adoption
of
general
policy
guidelines
cannot
confine
it.
There
is
nothing
improper
or
unlawful
for
the
Minister
charged
with
responsibility
for
the
administration
of
the
general
scheme
provided
for
in
the
Act
and
Regulations
to
formulate
and
to
state
general
requirements
for
the
granting
of
import
permits.
It
will
be
helpful
to
applicants
for
permits
to
know
in
general
terms
what
the
policy
and
practice
of
the
Minister
will
be.
To
give
the
guidelines
the
effect
contended
for
by
the
appellant
would
be
to
elevate
ministerial
directions
to
the
level
of
law
and
fetter
the
Minister
in
the
exercise
of
his
discretion.
Le
Dain
J.
dealt
with
this
question
at
some
length
and
said,
at
p.
513:
The
Minister
may
validly
and
properly
indicate
the
kind
of
considerations
by
which
he
will
be
guided
as
a
general
rule
in
the
exercise
of
his
discretion
(see
British
Oxygen
Co.
Ltd.
v.
Minister
of
Technology
[1971]
A.C.
(H.L.)
610;
Capital
Cities
Communications
Inc.
v.
Canadian
Radio-Television
Commission
[1978]
2
S.C.R.
141,
at
pp.
169-171),
but
he
cannot
fetter
his
discretion
by
treating
the
guidelines
as
binding
upon
him
and
excluding
other
valid
or
relevant
reasons
for
the
exercise
of
his
discretion
(see
Re
Hopedale
Developments
Ltd.
and
Town
of
Oakville
[1965]
1
O.R.
259).
In
any
case,
the
words
employed
in
s.
8
do
not
necessarily
fetter
the
discretion.
The
use
of
the
expression
“a
permit
will
normally
be
issued”
is
by
no
means
equivalent
to
the
words
‘a
permit
will
necessarily
be
issued’.
They
impose
no
requirement
for
the
issue
of
a
permit.
In
construing
statutes
such
as
those
under
consideration
in
this
appeal,
which
provide
for
far-reaching
and
frequently
complicated
administrative
schemes,
the
judicial
approach
should
be
to
endeavour
within
the
scope
of
the
legislation
to
give
effect
to
its
provisions
so
that
the
administrative
agencies
created
may
function
effectively,
as
the
legislation
intended.
In
my
view,
in
dealing
with
legislation
of
this
nature,
the
courts
should,
wherever
possible,
avoid
a
narrow,
technical
construction,
and
endeavour
to
make
effective
the
legislative
intent
as
applied
to
the
administrative
scheme
involved.
It
is,
as
well,
a
clearly-estab-
lished
rule
that
the
courts
should
not
interfere
with
the
exercise
of
a
discretion
by
a
statutory
authority
merely
because
the
court
might
have
exercised
the
discretion
in
a
different
manner
had
it
been
charged
with
that
responsibility.
Where
the
statutory
discretion
has
been
exercised
in
good
faith
and,
where
required,
in
accordance
with
the
principles
of
natural
justice,
and
where
reliance
has
not
been
placed
upon
considerations
irrelevant
or
extraneous
to
the
statutory
purpose,
the
courts
should
not
interfere.
Finally,
I
find
a
refusal
to
recognize
a
right
to
a
refund
in
respect
of
a
transferred
remission
order
relating
to
production
parts
to
be
wholly
consistent
with
the
Minister’s
discretion
not
to
grant
a
remission
order
under
subsection
76(1)
and
to
establish
conditions
under
subsection
76(2)
of
the
Act.
With
respect
to
the
second
issue,
and
contrary
to
the
contention
of
the
applicant,
I
am
of
the
opinion
that
it
is
not
contrary
to
the
plain
meaning
of
the
policy
statement
of
the
Minister
to
have
applied
the
prohibition
on
transferability
to
a
remission
order
issued
prior
to
publication
of
that
statement.
It
is
clear
from
the
terms
of
the
Act
that
the
Minister
has
the
power
to
revoke
an
approved
application
for
remission
of
duty
when
the
Minister
is
“of
the
opinion,
having
regard
to
the
criteria
mentioned
in
subsection
75(3),
that
machinery
and
equipment
in
respect
of
which
remission
has
been
granted
under
subsection
(1)
has
become
available
from
production
in
Canada”
(s.76(3)).
This
power
prevails
“notwithstanding
the
terms
and
conditions
of
the
remission”,
and
operates
such
that
the
remission
“shall
cease
to
apply
to
machinery
and
equipment
accounted
for
under
section
32
of
the
Customs
Act
after
the
effective
date
of
the
revocation”.
In
my
view,
given
that
the
Act
expressly
reserves
to
the
Minister
the
right
to
revoke
remissions
of
duty,
there
is
nothing
inconsistent
with
issuing
a
policy
that
restricts
transferability
of
approved
applications
for
duty
remission
on
production
parts
from
the
date
of
publication
of
the
policy
onwards.
As
I
see
it,
the
transferability
aspect
of
Memorandum
D8-5-1
is
entirely
consistent
with
the
power
conferred
upon
the
Minister
by
Part
II,
Division
III
of
the
Act
to
respond
quickly
to
changes
in
the
availability
of
goods
from
production
in
Canada.
As
noted
by
Mr.
Justice
Linden
in
Canadian
Assn.
of
Regulated
Importers
v.
Canada
(Attorney
General)
.
...these
policy
guidelines
are
not
regulations;
they
may
be
easily
changed
from
time
to
time,
depending
on
the
economic
and
political
climate
as
well
as
the
international
situation.
They
are
a
useful
guide
only,
which
is
as
it
should
be.
Furthermore,
even
though
the
clarification
of
the
administrative
practice
relating
to
transfers
was
first
published
after
the
remission
order
at
issue
was
granted,
it
was
published
prior
to
both
the
purported
transfer
of
the
remission
order
to
the
applicant
and
the
latter’s
application
for
refund.
Conclusion
In
my
opinion,
the
applicant
has
not
succeeded
in
demonstrating
that
the
restriction
on
transferability
of
approved
applications
for
remission
of
duty
on
production
parts
found
in
Paragraph
36
of
Memorandum
D8-5-1
either
should
not
or
does
not
apply
to
its
application
for
refund.
Moreover,
the
applicant
has
not
established
that
the
Minister
was
not
entitled
to
issue
such
a
policy
in
furtherance
of
the
efficient
administration
of
the
Machinery
Program.
For
the
foregoing
reasons,
I
find
that
the
Minister
was
justified
in
refusing
the
applicant’s
application
for
refund
made
pursuant
to
section
77
of
the
Act.
Accordingly,
the
application
is
denied.
Application
dismissed.
Schedule
A
Division
III
Machinery
and
Equipment
73.
In
this
Division,
except
for
the
purposes
of
section
75.1,
“machinery
and
equipment”
means
goods
that
are
classified
under
a
tariff
item
enumerated
in
Schedule
VI
and,
where
applicable,
under
a
code
enumerated
in
that
Schedule
with
respect
to
that
tariff
item.
74.
(1)
No
customs
duties
are
payable
in
respect
of
machinery
and
equipment
that,
at
the
time
the
machinery
and
equipment
is
accounted
for
under
section
32
of
the
Customs
Act,
is
included
on
the
list
of
machinery
and
equipment
established
by
the
Minister
pursuant
to
subsection
75(1).
(2)
The
amount
of
the
excise
taxes
payable
in
respect
of
the
machinery
and
equipment
referred
to
in
subsection
(1)
shall
be
determined
as
if
the
duty
paid
value
of
the
machinery
and
equipment
were
the
value
for
duty
of
the
machinery
and
equipment.
(3)
The
amount
of
the
goods
and
services
tax
payable
in
respect
of
the
machinery
and
equipment
referred
to
in
subsection
(1)
shall
be
determined
as
if
the
value
of
the
goods,
for
the
purposes
of
section
215
of
the
Excise
Tax
Act,
were
the
value
for
duty
of
the
machinery
and
equipment.
75.(1)
The
Minister
may
establish
a
list
of
machinery
and
equipment
that,
in
the
opinion
of
the
Minister,
having
regard
to
the
criteria
mentioned
in
subsection
(3),
is
not
available
from
production
in
Canada.
(2)
The
Minister
shall
cause
a
list
established
under
subsection
(1)
and
every
addition
thereto
and
deletion
therefrom
to
be
published
in
the
Canada
Gazette
within
sixty
days
after
the
establishment,
addition
or
deletion,
and
a
list,
addition
or
deletion
so
published
shall
be
judicially
noticed.
(3)
For
the
purposes
of
subsection
(1),
the
Minister
shall
have
regard
to
the
following
criteria:
(a)
whether
a
manufacturer
has,
within
his
normal
operational
framework,
the
full
range
of
technical
and
physical
capabilities
necessary
for
production
in
Canada
of
machinery
and
equipment
reasonably
equivalent
to
the
relevant
machinery
and
equipment;
and
(b)
whether
a
Canadian
manufacturer
has
so
produced
machinery
and
equipment
as
to
demonstrate
a
production
competence
reasonably
equivalent
to
that
required
to
produce
the
relevant
machinery
and
equipment.
75.1(1)
No
customs
duties
are
payable
in
respect
of
machinery
and
equipment
that,
at
the
time
the
machinery
and
equipment
is
accounted
for
under
section
32
of
the
Customs
Act,
is
(a)
included
on
the
list
of
machinery
and
equipment
established
by
the
Minister
pursuant
to
subsection
(3);
and
(b)
entitled
to
the
benefit
of
the
United
States
Tariff.
(2)
The
amount
of
the
excise
taxes
payable
in
respect
of
the
machinery
and
equipment
referred
to
in
subsection
(1)
shall
be
determined
as
if
the
duty
paid
value
of
the
machinery
and
equipment
were
the
value
for
duty
of
the
machinery
and
equipment.
(2.1)
The
amount
of
the
goods
and
services
tax
payable
in
respect
of
the
machinery
and
equipment
referred
to
in
subsection
(1)
shall
be
determined
as
if
the
value
of
the
goods,
for
the
purposes
of
section
215
of
the
Excise
Tax
Act,
were
the
value
for
duty
of
the
machinery
and
equipment.
(3)
The
Minister
shall,
for
the
purpose
of
implementing
paragraph
6
of
Article
401
of
the
Canada-United
States
Free
Trade
Agreement,
establish
a
list
of
machinery
and
equipment
in
accordance
with
Annex
401.6
thereof.
(4)
The
Minister
may
add
machinery
and
equipment
to
the
list
established
under
subsection
(3).
76.
(1)
Where
an
application
for
remission
is
made
in
accordance
with
subsection
(4)
in
respect
of
machinery
and
equipment
not
included
on
the
list
established
pursuant
to
subsection
75(1)
and
the
Minister
is
of
the
opinion,
having
regard
to
the
criteria
mentioned
in
subsection
75(3),
that
the
machinery
and
equipment
is
not
available
from
production
in
Canada,
the
Minister
may
remit
in
respect
of
the
machinery
and
equipment
(a)
the
customs
duties
that,
but
for
this
subsection,
would
be
payable
in
respect
of
the
machinery
and
equipment,
and
(b)
that
portion
of
the
excise
taxes
that,
but
for
this
subsection,
would
be
payable
in
respect
of
the
machinery
and
equipment
in
an
amount
equal
to
the
difference
between
the
amount
of
the
excise
taxes
payable
in
respect
of
the
machinery
and
equipment
and
the
amount
of
the
excise
taxes
that
would
be
payable
in
respect
of
the
machinery
and
equipment
if
the
duty
paid
value
used
to
calculate
the
excise
taxes
so
payable
were
the
value
for
duty
used
to
calculate
the
customs
duties
so
payable,
and,
notwithstanding
Part
I
and
the
Excise
Tax
Act,
the
amounts
of
the
customs
duties
and
excise
taxes
payable
in
respect
of
the
machinery
and
equipment
shall
be
reduced
in
accordance
with
paragraphs
(a)
and
(b).
(2)
Subject
to
subsection
(3),
remissions
under
subsection
(1)
may
be
conditional
or
unconditional
and
may
be
granted
regardless
of
whether
in
a
particular
case
any
liability
to
pay
the
duties
has
arisen.
(3)
Where
the
Minister
is
of
the
opinion,
having
regard
to
the
criteria
mentioned
in
subsection
75(3),
that
machinery
and
equipment
in
respect
of
which
remission
has
been
granted
under
subsection
(1)
has
become
available
from
production
in
Canada,
the
Minister
may
revoke
the
remission
and,
notwithstanding
the
terms
and
conditions
of
the
remission,
it
shall
cease
to
apply
to
machinery
and
equipment
accounted
for
under
section
32
of
the
Customs
Act
after
the
effective
date
of
the
revocation.
(4)
An
application
for
remission
must
be
accompanied
by
evidence
satisfactory
to
the
Minister
that,
having
regard
to
the
criteria
mentioned
in
subsection
75(3),
the
machinery
and
equipment
is
not
available
from
production
in
Canada.
77.
(1)
A
refund
shall
be
granted
of
the
portion
of
the
customs
duties
or
excise
taxes
described
in
paragraph
76(1)(a)
or
(b)
if
(a)
a
remission
of
the
portion
is
made
under
subsection
76(1);
(b)
the
portion
of
the
duties
was
paid;
and
(c)
an
application
for
refund
is
made
in
accordance
with
subsection
(2).
(2)
For
the
purposes
of
paragraph
(1)(c),
an
application
for
refund
must
be
(a)
supported
by
such
evidence
as
the
Minister
may
require;
and
(b)
made
in
the
prescribed
manner
and
in
the
prescribed
form
containing
the
prescribed
information
within
five
years,
or,
where
another
time
is
prescribed,
within
that
other
time,
after
the
machinery
and
equipment
in
respect
of
which
it
is
made
is
accounted
for
under
section
32
of
the
Customs
Act.
(3)
The
Governor
in
Council
may
make
regulations
prescribing,
for
the
purposes
of
subsection
(2),
the
manner
of
making
an
application
and
the
time
within
which
it
must
be
made.
78.
[Repealed,
R.S.,
1985,
c.
9
(4th
Supp.),
s.
3]
79.
(1)
Where
a
remission
is
granted
under
section
76,
the
Minister
shall
issue
to
the
person
who
applied
for
the
remission
a
certificate
bearing
a
number
to
be
used
to
identify
the
machinery
and
equipment.
(2)
Where
a
remission
granted
under
section
76
ceases
to
have
effect
or
is
revoked
pursuant
to
subsection
76(3),
the
Minister
may
cancel
the
certificate
issued
under
subsection
(1)
in
respect
of
the
remission.
(3)
Machinery
and
equipment
in
respect
of
which
remission
is
granted
under
section
76
may
be
released
without
payment
of
the
portions
of
the
duties
remitted
thereby
if
the
number
mentioned
in
the
certificate
issued
under
subsection
(1)
is
disclosed
when
the
machinery
and
equipment
is
accounted
for
under
section
32
of
the
Customs
Act
and
the
certificate
is
in
force
at
that
time.