Stone,
J.:—We
do
not
need
to
hear
you
Mr.
Bowie.
Although
it
is
conceded
and
we
agree
that
the
Board
erred
in
declining
to
exercise
its
jurisdiction,
we
are
all
of
the
view
that
this
appeal
on
the
merits
must
fail.
The
appellant
put
its
case
on
three
bases.
The
first
is
that
the
mine
shaft
which
it
sank
through
the
use
of
explosives,
blasting
agents,
igniter
cord
and
connecting
wire
(collectively
referred
to
as
“the
explosives”)
falls
within
the
word
“goods”
for
the
purpose
of
the
exemption
contained
in
section
2
of
Part
XIII,
Schedule
III
to
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13
as
amended.
We
are
unable
to
agree
with
that
interpretation.
The
second
argument
is
that
the
explosives
were
consumed
by
the
appellant
in
the
production
of
waste
rock
which,
perforce,
had
to
be
removed
from
the
ground
in
order
that
the
shaft
could
be
sunk.
That
waste
rock,
it
is
argued,
was
“goods”
within
the
exempting
language
and,
accordingly,
the
appellant
is
entitled
to
the
exemption.
The
work
carried
out
by
the
appellant
was,
by
the
construction
contract,
chiefly
directed
to
the
sinking
of
the
shaft.
The
only
reference
it
makes
to
“waste
rock”
is
concerned
with
its
“disposal”
by
the
appellant
“by
dumping
as
directed
and
localized”
by
the
mining
company's
engineer,
that
company
remaining
responsible
for
“spreading”
it.
There
is
nothing
in
the
record
to
indicate
that
the
operation
resulted
in
the
production
of
any
goods.
In
fact,
the
record
rather
suggests
that
the
waste
rock
had
no
particular
application
or
value.
Nor
are
we
persuaded
by
the
third
argument.
It
was
contended
that
the
explosives
consumed
in
sinking
the
shaft
should
be
exempted
because
they
would
have
been
exempted
had
they
been
consumed
by
the
mining
company
itself
had
it
sunk
the
shaft,
on
the
basis
that
the
shaft
would
allow
access
to
a
further
body
of
ore.
Assuming
without
deciding
that
that
would
be
so,
we
cannot
agree
that
the
explosives
consumed
by
the
appellant
are
exempt.
We
are
not
persuaded
that
the
appellant
was
acting
as
agent
for
the
mining
company
in
sinking
the
shaft.
The
record
supports
the
conclusion
that
it
was
acting
as
an
independent
contractor
in
carrying
out
that
work.
For
the
foregoing
reasons
the
appeal
should
be
allowed
in
so
far
as
the
question
of
the
Board's
jurisdiction
is
concerned
but
a
declaration
should
be
made
pursuant
to
subsection
60(4)
of
the
Excise
Tax
Act
that
the
goods
in
issue
are
not
exempt
from
taxation
thereunder.
The
respondent
should
have
its
costs.
Appeal
allowed
in
part.
Email this Content