TASCHEREAU,
J.
(all
concur)
:—Section
80A
(R.S.C.
1927,
e.
179
and
amendments)
provides
that:
“80A.
1.
There
shall
be
imposed,
levied
and
collected,
an
excise
tax
equal
to
twenty-five
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.
2.
Every
person
liable
for
taxes
under
this
section
shall,
in
addition
to
the
returns
required
by
subsection
one
of
section
one
hundred
and
six
of
this
Act,
file
each
day
a
true
return
of
the
total
taxable
value
and
the
amount
of
tax
due
by
him
on
his
deliveries
of
dressed
furs,
dyed
furs,
and
dressed
and
dyed
furs
for
the
last
preceding
business
day,
under
such
regulations
as
may
be
prescribed
by
the
Minister.
3.
The
said
return
shall
be
filed
and
the
tax
paid
not
later
than
the
first
business
day
following
that
on
which
the
deliveries
were
made
.
.
.”
The
respondent,
M.
Geller
Inc.,
is
a
dealer
in
sheepskins,
and
some
of
this
material
was
dressed
in
Canada
by
Nu-Way
Lambskin
Processors
Ltd.,
both
firms
operating
in
the
City
and
District
of
Montreal.
Nu-Way,
as
dresser,
was
responsible
for
the
payment
of
the
tax
under
Section
80A,
and
paid
$20,011.72
to
Her
Majesty
the
Queen,
and
on
March
8,
1957
the
present
respondent
and
Nu-Way
filed
a
Petition
of
Right
claiming
from
Her
Majesty
the
Queen
the
sum
of
$20,956.74.
It
is
argued
that
the
tax
imposed
on
dressed
furs
in
Canada
is
illegal
because
sheepskin
is
not
a
fur
falling
within
the
meaning
of
the
Act.
It
is
admitted
by
all
parties
that
M.
Geller
Inc.
reimbursed
to
Nu-Way
the
sum
of
$20,956.74
paid
to
Her
Majesty
the
Queen
by
the
latter.
Both
Nu-Way
and
the
respondent
M.
Geller
Inc.
claimed
a
refund
of
the
amount
paid.
The
respondent
in
the
present
case
alleged
that
it
was
the
only
one
that
was
required
to
pay
the
tax,
that
it
paid
the
tax
through
the
intermediary
of
Nu-Way
Lambskin
and
that,
having
made
a
demand
for
refund
in
writing
within
two
years
from
the
date
of
payment,
as
required
by
the
Act,
it
was
entitled
to
such
a
refund.
The
learned
trial
judge
dismissed
the
Petition
of
Right
of
the
suppliant
Nu-Way
Lambskin
on
the
ground
that
it
failed
to
apply
for
a
refund
within
the
statutory
delay.
Section
105(6)
provides
as
follows:
“105.
(6)
If
any
person,
whether
by
mistake
of
law
or
fact,
has
paid
or
overpaid
to
His
Majesty,
any
moneys
which
have
been
taken
to
account,
as
taxes
imposed
by
this
Act,
such
moneys
shall
not
be
refunded
unless
application
has
been
made
in
writing
within
two
years
after
such
moneys
were
paid
or
overpaid.’’
The
claim
of
the
respondent,
however,
was.
maintained
on
the
ground
that
the
right
to
claim
a
refund
:
is
open
to
any
person
who
has
paid
moneys
which
have
been
taken
to
account
as
taxes
imposed
by
the
Act
and
that
the
evidence
established
that
the
respondent
is
in
fact
the
person
who
paid
the
moneys
in
question
to
Her
Majesty.
It
is
clear
and
admitted
that
the
said
sum
of
$20,956.74
was
paid
as
tax
and
that
it
was
not
legally
owing,
as
this
Court
decided
in
several
cases
and
particularly
in
Universal
Fur
Dressers
and
Dyers
Ltd.
v.
Her
Majesty
the
Queen,
[1956]
S.C.R.
632;
[1963]
C.T.C.
435.
In
that
case
it
was
held
by
this
Court
that
mouton
was
not
fur
and,
therefore,
not
taxable
under
Section
80A
of
the
Excise
Tax
Act.
Before
this
Court
Nu-Way
did
not
appeal,
and
we
are
concerned
therefore
only
with
the
appeal
of
Her
Majesty
the
Queen
against
the
present
respondent.
I
have
reached
the
conclusion
that
this
appeal
should
be
allowed
and
the
Petition
dismissed
in
part.
The
person
obliged
to
pay
the
tax
is
the
dresser,
and
the
person
entitled
to
a
refund
is
the
dresser
if
the
tax
has
been
paid
through
mistake
of
law
or
fact.
In
the
present
case,
the
tax
was
paid
by
the
dresser
Nu-Way
and
it
was
the
sole
person
entitled
to
a
refund.
This
was
denied
by
the
Exchequer
Court,
and
rightly
in
view
of
the
terms
of
Section
105(6).
The
respondent
has
no
legal
right
to
claim.
It
is
true
that
M.
Geller
Inc.
reimbursed
Nu-Way,
but
this
payment
does
not
give
a
right
of
action
to
the
former,
which
the
law
denies.
The
arrangements
made
between
Geller
and
Nu-Way
are
of
no
concern
to
the
appellant.
They
are
res
inter
alios
acta
and
cannot
affect
the
rights
of
the
Crown.
The
appeal
must
therefore
be
allowed
with
costs,
and
the
Petition
dismissed
except
a
to
an
amount
of
$945.02.
It
is
conceded
by
the
appellant
that
this
sum
was
paid
as
excise
duty
on
imports
brought
into
Canada
from
the
United
States
of
America,
and
that
it
must
be
refunded.
The
appellant
will
pay
the
costs
in
the
Exchequer
Court.
Appeal
allowed
with
costs.
HARRY
C.
WALKER,
WALYRIE
KLAK
and
WILLIAM
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