CARTWRIGHT,
J.:—This
is
an
appeal
from
a
judgment
of
Cameron,
J.
dated
March
17,
1954
declaring
that
the
respondent
is
entitled
to
recover
$573.08
excise
tax
together
with
certain
penalties
and
costs.
The
action
was
brought
for
the
purpose
of
determining
whether
the
product
sold
by
the
appellant
and
described
as
‘‘mouton’’
was
subject
to
tax
under
Section
80A
of
the
Excise
Tax
Act
which,
so
far
as
relevant,
reads
as
follows
:
“80A.
1.
There
shall
be
imposed,
levied
and
collected,
an
excise
tax
equal
to
fifteen
per
cent
of
the
current
market
value
of
all
dressed
furs,
dyed
furs
and
dressed
and
dyed
furs,
(i)
imported
into
Canada,
payable
by
the
importer
or
transferee
of
such
goods
before
they
are
removed
from
the
custody
of
the
proper
customs
fficer;
or
(ii)
dressed,
dyed,
or
dressed
and
dyed
in
Canada,
payable
by
the
dresser
or
dyer
at
the
time
of
delivery
by
him.’’
The
product
in
question
and
the
methods
used
in
preparing
it
for
sale
are
described
in
detail
in
the
evidence.
The
appellant
purchases
the
raw
skins
of
shearlings
of
the
merino
type
usually
from
abattoirs
but
sometimes
from
wool
pullers.
A
shearling
is
a
sheep
that
has
been
shorn
once.
Most
of
the
skins
used
by
the
appellant
are
purchased
in
car-load
lots
from
the
United
States.
After
being
subjected
to
processes
which
are
described
in
detail
in
the
reasons
of
the
learned
trial
judge
and
being
dyed
the
end
product
closely
resembles
certain
types
of
fur
such
as
beaver,
nutria
or
seal.
It
should
be
mentioned
that,
while
the
learned
trial
judge
refers
in
his
reasons
to
the
skins
purchased
by
the
appellant
as
coming
from
a
young
lamb
of
the
merino
type,
both
counsel
agreed
that
in
fact
the
skins
are
those
of
mature
sheep.
The
main
contest
at
the
trial
was
as
to
whether
“mouton”
was
fur
or
was
a
product
other
than
fur
which
had
been
prepared
to
simulate
fur.
The
learned
judge
found
that
it
was
a
fur,
that
it
was
unnecessary
to
decide
whether
it
had
been
dressed
as
it
had
admittedly
been
dyed,
and
that,
consequently,
it
was
subject
to
tax.
The
learned
judge
states
that
he
had
no
reason
to
question
the
honesty
or
sincerity
of
any
of
the
witnesses
and
his
findings
do
not
turn
on
any
question
of
credibility.
In
the
course
of
his
reasons
the
learned
trial
judge
says:
“Counsel
for
the
defendant
submits
that
in
order
to
bring
his
client
within
the
liability
imposed
by
s.
80A,
the
Crown
must
establish
that
what
it
did
was
to
dress,
or
dye,
or
dress
and
dye,
a
fur,
and
he
argues,
therefore,
that
the
first
and
main
question
for
determination
is
this—Is
a
sheepskin
(or
the
Merino
type
shearling
which
his
client
bought)
a
fur?
He
contends,
of
course,
that
no
one
would
consider
what
he
calls
(
a
barnyard
sheepskin’
to
be
a
fur.
In
my
view,
however,
that
is
not
the
question
to
be
answered.
It
is
rather
this.
Was
that
which
the
defendant
delivered
(‘mouton’)—a
dyed
fur
or
a
dressed
and
dyed
fur?”’
With
the
greatest
respect,
it
seems
to
me
that
the
form
in
which
the
learned
judge
states
the
question
tends
to
becloud
the
issue.
It
does
not
appear
to
me
to
be
possible
to
take
an
article
or
substance
which
is
not
fur
and
by
dressing
and
dyeing
it
to
produce
a
dressed
or
dyed
fur.
Its
appearance
may
be
changed
so
that
no-one
but
an
expert
can
say
that
it
is
not
a
fur
but
its
substance
remains
unaltered.
The
evidence
relied
upon
by
the
respondent
relates
almost
entirely
to
the
end
product
rather
than
the
original
skin.
A
consideration
of
all
the
evidence
and
of
the
authorities
and
dictionary
definitions
to
which
we
were
referred,
brings
me
to
the
conclusion
that
neither
in
technical
terms
nor
in
common
speech
nor
in
that
of
those
who
deal
in
such
products
would
the
skin
of
a
mature
merino
sheep
with
the
wool
or
hair
attached
to
it
be
described
as
a
fur.
The
evidence
shows
that
while
‘‘persian
lamb”
has
long
been
described
as
a
fur,
it
is
distinguished
from
the
pelts
of
other
types
of
lamb
or
sheep.
In
the
Encyclopaedia
Britannica
(1952),
Vol.
20
at
page
475,
domestic
sheep
are
grouped
into
six
types.
The
Merino
sheep
is
placed
in
the
‘‘Fine-wool
type’’,
while
the
only
breeds
placed
in
the
“Fur
type”
are
Karakul
and
Romanov,
the
former
including
‘‘
persian
lamb
’
While
the
regulations
to
be
mentioned
have
an
object
different
from
that
of
the
Excise
Tax
Act,
it
is
of
some
assistance
in
deciding
the
meaning
commonly
attributed
to
the
words
‘‘fur’’
or
“fur-bearing”
to
observe
that
in
the
regulations
made
by
P.C.
2336
(1951)
fur-bearing
and
wool-bearing
animals
are
contrasted
with
each
other.
Clause
1(d)
reads
as
follows:
“(d)
‘fur’
means
the
skin
of
any
animal,
whether
fur-bearing,
hair-bearing,
or
wool-bearing,
that
is
not
in
the
unhaired
condition
;’’
No
such
definition
is
contained
in
the
Excise
Tax
Act.
In
my
opinion
the
merino
sheep
is
a
wool-bearing
animal
and
not
a
fur-bearing
one,
its
skin
although
with
the
wool
attached
is
not
a
fur,
and
it
is
not,
and
could
not
be,
transmuted
into
a
fur
by
the
processes
to
which
it
is
subjected.
It
follows
that
I
would
allow
the
appeal
and
dismiss
the
information
with
costs
throughout.
Appeal
allowed
with
costs.
Email this Content