THE
PRESIDENT
:—During
1940,
1941
and
1942
the
defendant
imported
into
Canada
large
quantities
of
canned
corned
beef
from
Argentine,
Uruguay
and
Brazil
and
paid
customs
duties
based
on
the
values
at
which
the
goods
were
entered
for
customs.
On
December
16,
1942,
the
Commissioner
of
Customs
of
the
Department
of
National
Revenue
notified
the
defendant
that
the
importations
appeared
to
have
been
undervalued
and
that
he
proposed
to
instruct
the
collectors
at
the
various
ports
where
its
entries
had
been
passed
to
call
for
amending
entries
accounting
for
additional
duty
on
appraised
values
on
all
entries
passed
by
it
since
January
1,
1940.
After
correspondence
between
the
Department
and
the
defendant
or
its
Ottawa
representative,
the
Chief
Dominion
Customs
appraiser
made
appraisals
of
the
values
of
the
imported
goods
at
$104,031
in
excess
of
those
at
which
they
had
been
entered
for
duty
and
directed
the
defendant
to
make
amended
entries
and
pay
additional
customs
duty
and
taxes
amounting
to
$50,415.12,
and,
on
April
6,
1943,
sent
the
defendant
a
statement
showing
such
appraised
values
and
the
amount
of
underpaid
duty
and
taxes.
No
appeal
from
the
appraisals
was
taken,
but
representations
protesting
against
them
were
made
to
the
Department
by
the
defendant
and
its
Ottawa
representative.
Subsequently
the
matter
was
referred
to
the
Minister
of
National
Revenue,
and,
on
July
29,
1943,
the
Minister
advised
the
defendant’s
Ottawa
representative
by
letter
that
it
appeared
that
this
might
be
a
proper
case
in
which
to
determine
the
value
for
duty
under
section
41
of
the
Customs
Act,
but
that,
before
he
decided
what
determinations
should
be
made,
he
would
be
glad
to
arrange
an
appointment
to
hear
any
further
representations
or
to
receive
any
further
statement
in
writing.
An
appointment
was
then
arranged
with
the
Minister
on
July
14,
1943,
at
which
time
he
heard
oral
representations
both
by
the
defendant’s
Ottawa
representative
and
by
its
counsel.
Further
written
representations
were
also
made.
Finally,
on
August
19,
1948,
the
Minister
made
his
determination
as
follows
:
19th
August,
1943.
Memorandum
for:
David
Sim,
Esq.,
Deputy
Minister
of
National
Revenue,
Customs
Excise.
WHEREAS
Messrs.
Weddel
Limited,
Montreal,
imported
into
Canada
a
quantity
of
Canned
Beef
during
the
calendar
years
1940,
1941
and
1942,
AND
WHEREAS,
On
reviewing
the
circumstances
and
conditions
of
importation,
it
appears
to
me
and
I
find
that
such
circumstances
and
conditions
render
it
difficult
to
determine
the
value
of
the
goods
in
question
for
duty,
because—
(1)
Such
goods
are
not
sold
for
use
or
consumption
in
the
country
of
production
;
(2)
Such
goods,
by
reason
of
the
fact
that
the
circumstances
of
the
trade
render
it
necessary
or
desirable,
are
sold
under
conditions
or
to
a
class
of
purchaser
under
or
to
which
similar
goods
are
not
sold
by
the
exporter
for
home
consumption,
ACTING
under
the
provisions
of
The
Customs
Act,
I
determine
that
the
value
for
duty
of
the
Canned
Beef
imported
into
Canada
from
Brazil,
Argentine
and
Uruguay
during
the
calendar
years
1940,
1941
and
1942,
by
Messrs.
Weddel
Limited,
shall
be
as
set
forth
in
the
statement
attached
as
Schedule
"‘A''
hereto.
Colin
GIBSON,
Minister
of
National
Revenue.
Enel.
The
schedule
showed
that
the
amount
of
additional
customs
duty
and
taxes
payable
by
the
defendant
amounted
to
$49,312.03.
On
August
21,
1943,
the
Deputy
Minister
of
National
Revenue
(Customs
and
Excise)
notified
the
defendant’s
Ottawa
representative
of
the
Minister’s
determination,
sent
him
a
copy
of
the
schedule
and
required
the
entries
to
be
amended
not
later
than
September
2,
1943.
On
the
defendant’s
refusal
to
pay
any
additional
duty
or
taxes
this
action
was
brought.
The
plaintiff
claims
the
additional
amount
of
customs
duty
and
taxes
resulting
from
the
determination
of
the
Minister
purporting
to
act
under
section
41
of
the
Customs
Act,
R.S.C.
1927,
chap.
42,
and
amendments,
and,
in
the
alternative,
the
additional
amount
resulting
from
the
appraisal
by
the
Chief
Dominion
Customs
appraiser
purporting
to
act
under
section
48.
It
is
not
necessary
to
outline
the
scheme
of
customs
administration
in
Canada
for
this
was
done
by
Rinfret
J.,
as
he
then
was,
in
delivering
the
judgment
of
the
Supreme
Court
of
Canada
in
Reference
Concerning
the
Jurisdiction
of
the
Tariff
Board
of
Canada^
[1934]
S.C.R.
538.
In
this
action
we
are
concerned
mainly
with
the
sections
of
the
Customs
Act
dealing
with
the
valuation
of
goods
for
duty
and
the
respective
functions
and
duties
relating
thereto
of
the
Dominion
Customs
appraisers
and
the
Minister.
The
basic
section
is
section
35,
which
reads
as
follows:
35.
Whenever
any
duty
ad
valorem
is
imposed
on
any
goods
imported
into
Canada,
the
value
for
duty
shall
be
the
fair
market
value
thereof,
when
sold
for
home
consumption,
in
the
principal
markets
of
the
country
whence
and
at
the
time
when
the
same
were
exported
directly
to
Canada.
This
section
presupposes
not
only
that
the
goods
are
sold
for
home
consumption
in
the
country
of
export
but
also
that
there
are
principal
markets
in
such
country
in
which
the
goods
are
so
sold.
Isolated
sales
in
the
country
of
export
do
not,
of
themselves,
satisfy
the
conditions
of
the
section.
The
function
of
valuing
goods
for
duty
is
primarily
performed
by
appraisers,
whose
appointment
is
provided
for
by
section
4,
and
the
manner
in
which
the
Dominion
Customs
appraisers
shall
perform
their
duties
is
specified
by
section
38
as
follows
:
38.
The
Dominion
Customs
appraisers
and
every
one
of
them
and
every
person
who
acts
as
such
appraiser,
or
the
collector,
as
the
case
may
be,
shall,
by
all
reasonable
ways
and
means
in
his
or
their
power,
ascertain,
estimate
and
appraise
the
true
and
fair
market
value,
any
invoice
or
affidavit
thereto
to
the
contrary
notwithstanding,
of
the
goods
at
the
time
of
exportation
and
in
the
principal
markets
of
the
country
whence
the
same
have
been
imported
into
Canada,
and
the
proper
weights,
measures
or
other
quantities,
and
the
fair
market
value
thereof,
as
the
case
requires.
While
the
appraiser
is
not
bound
by
the
value
at
which
the
goods
are
entered
or
by
any
affidavit
as
to
their
value
but
is
given
wide
powers
to
ascertain,
estimate
and
appraise
the
true
and
fair
market
value
"'by
all
reasonable
ways
and
means,’’
he
is
governed
by
section
35
for
it
lays
down
the
basis
for
the
value
he
is
to
find
and
such
basis
rests
upon
the
assumption
that
goods
are
sold
for
home
consumption
in
the
principal
markets
of
the
country
of
export.
He
cannot
make
a
valid
appraisal
except
in
cases
where
he
can
use
the
basis
laid
down
by
section
35
and
where
the
conditions
presupposed
by
it
in
fact
exist.
There
are
several
sections
in
the
Act
providing
for
review
of
the
action
of
an
appraiser.
Under
section
38(4)
there
may
be
a
review
by
the
Board
of
Customs,
now
succeeded
by
the
Tariff
Board,
but
such
Board
is
confined
to
a
review
of
the
appraiser’s
decision
and
is
bound
by
the
same
limitations
of
jurisdiction
as
the
appraiser.
A
second
provision
for
reviewing
an
appraisal
appears
in
section
48.
This
is
an
important
section
for
consideration
since
it
was
under
it
that
the
Chief
Dominion
Customs
appraiser
purported
to
make
his
appraisal.
It
provides
as
follows:
48.
If,
upon
any
entry
or
in
connection
with
any
entry,
it
appears
to
any
Dominion
appraiser
or
to
the
Board
of
Customs
that
any
goods
have
been
erroneously
appraised,
or
allowed
entry
at
an
erroneous
valuation
by
any
appraiser
or
collector
acting
as
such,
or
that
any
of
the
foregoing
provisions
of
this
Act
respecting
the
value
at
which
goods
shall
be
entered
for
duty
have
not
been
complied
with,
such
Dominion
appraiser
or
such
Board
may
make
a
fresh
appraisement
or
valuation,
and
may
direct,
under
the
valuation
or
appraisement
so
made,
an
amended
entry
and
payment
of
the
additional
duty,
if
any,
on
such
goods,
or
a
refund
of
a
part
of
the
duty
paid,
as
the
case
requires,
subject,
in
case
of
dissatisfaction
on
the
part
of
the
importer,
to
such
further
inquiry
and
appraisement
as
in
such
case
hereinafter
provided
for.
The
Dominion
appraiser’s
jurisdiction
under
section
48
is
confined
to
making
a
‘‘fresh
appraisement
or
valuation,’’
but
he
is
also
governed
by
section
35
and
may
act
only
in
those
cases
where
the
basis
laid
down
by
it
can
be
used.
Then
it
is
further
provided
by
section
52
that
an
appeal
may
be
taken
from
the
decision
of
the
appraiser
under
section
48
to
a
board
of
three
valuators
who
are
to
examine
and
appraise
the
goods
in
accordance
with
the
provisions
of
the
Act.
The
appraiser
has
no
power
to
decide
whether
goods
are
sold
for
home
consumption
in
the
country
of
export.
The
power
to
make
this
decision
and
other
decisions
in
special
cases
of
difficulty
is
vested
exclusively
in
the
Minister
by
section
41.
This
section
is
of
such
importance
as
to
warrant
its
citation
in
full.
It
provides
as
follows:
41.
Whenever
goods
are
imported
into
Canada
under
such
circumstances
or
conditions
as
render
it
difficult
to
determine
the
value
thereof
for
duty
because
(a)
such
goods
are
not
sold
for
use
or
consumption
in
the
country
of
production;
or
(b)
a
lease
of
such
goods
or
the
right
of
using
the
same
but
not
the
right
of
property
therein
is
sold
or
given;
or
(c)
such
goods
having
a
royalty
imposed
thereon,
the
royalty
is
uncertain,
or
is
not
from
other
causes
a
reliable
means
of
estimating
the
value
of
the
goods;
or
(d)
such
goods
are
usually
or
exclusively
sold
by
or
to
agents-
or
by
subscription
;
or
(e)
such
goods
by
reason
of
the
fact
that
the
circumstances
of
the
trade
render
it
necessary
or
desirable
are
sold
under
conditions
or
to
a
class
of
purchaser
under
or
to
which
similar
goods
are
not
sold
by
the
exporter
for
home
consumption;
or
such
goods
are
sold
or
imported
in
or
under
any
other
unusual
or
peculiar
manner
or
conditions
;
the
Minister
may
determine
the
value
for
duty
of
such
goods,
and
the
value
so
determined
shall,
until
otherwise
provided,
be
the
value
upon
which
the
duty
on
such
goods
shall
be
computed
and
levied.
2.
The
Minister
shall
be
the
sole
judge
as
to
the
existence
of
all
or
any
of
the
causes
or
reasons
aforesaid.
Section
41
sets
out
two
conditions
for
the
exercise
of
the
Minister’s
jurisdiction
to
determine
the
value
for
duty
of
goods.
In
the
first
place
the
goods
must
be
imported.
The
fact
of
such
importation
is
an
essential
condition
of
a
valid
determination
by
the
Minister,
and
without
it
his
act
would
be
a
nullity.
The
second
condition
is
of
a
different
nature.
While
the
Minister
may
determine
the
value
for
duty
when
goods
are
imported
under
such
circumstances
or
conditions
as
render
it
difficult
to
determine
their
value
for
duty
for
the
causes
or
reasons
set
out
in
paragraphs
(a)
to
(e),
it
does
not
seem
to
be
essential
to
the
exercise
of
his
jurisdiction
that
any
of
these
causes
or
reasons
should
in
fact
exist,
for
by
subsection
2
the
Minister
is
made
the
sole
judge
as
to
the
existence
of
all
or
any
of
them.
Parliament
has
clearly
given
the
Minister
the
power
to
find
the
facts
of
this
second
condition,
upon
which
the
exercise
of
his
Jurisdiction
to
determine
value
for
duty
depends,
and
has
made
him
the
sole
judge
of
their
existence.
The
case
falls
squarely
within
the
second
class
of
cases
referred
to
by
Lord
Esher
M.R.
in
his
well
known
discussion
of
jurisdiction
in
The
Queen
v.
Commissioners
for
Special
Purposes
of
the
Income
Tax
(1888),
21
Q.B.D.
313
at
319,
where
he
said:
When
an
inferior
court
or
tribunal
or
body,
which
has
to
exercise
the
power
of
deciding
facts,
is
first
established
by
Act
of
Parliament,
the
legislature
has
to
consider
what
powers
it
will
give
that
tribunal
or
body.
It
may
in
effect
say
that,
if
a
certain
state
of
facts
exists
and
is
shewn
to
such
tribunal
or
body
before
it
proceeds
to
do
certain
things,
it
shall
have
jurisdiction
to
do
such
things,
but
not
otherwise.
There
it
is
not
for
them
conclusively
to
decide
whether
that
state
of
facts
exists,
and,
if
they
exercise
the
jurisdiction
without
its
existence,
what
they
do
may
be
questioned,
and
it
will
be
held
that
they
have
acted
without
jurisdiction.
But
there
is
another
state
of
things
which
may
exist.
The
legislature
may
intrust
the
tribunal
or
body
with
a
jurisdiction,
which
includes
the
jurisdiction
to
determine
whether
the
preliminary
state
of
facts
exists
as
well
as
the
jurisdiction,
on
finding
that
it
does
exist,
to
proceed
further
or
do
something
more.
In
this
case
one
condition
of
the
valid
exercise
of
jurisdiction
by
the
Minister,
namely,
an
importation
of
goods,
does
exist
in
fact,
for
the
importation
of
canned
corned
beef
by
the
defendant
during
1940
to
1942
are
proved.
As
to
the
other
condition,
namely,
the
existence
of
circumstances
or
conditions
rendering
it
difficult
to
determine
the
value
for
duty
of
the
goods
for
one
or
more
of
the
causes
or
reasons
specified
in
paragraphs
(a)
to
(e),
the
Minister
in
his
determination
of
value,
dated
August
19,
1943,
found
the
existence
of
two
such
causes
or
reasons,
namely,
(1)
Such
goods
are
not
sold
for
use
or
consumption
in
the
country
of
production;
and
(2)
Such
goods,
by
reason
of
the
fact
that
the
circumstances
of
the
trade
render
it
necessary
or
desirable,
are
sold
under
conditions
or
to
a
class
of
purchaser
under
or
to
which
similar
goods
are
not
sold
by
the
exporter
for
home
consumption.
There
is,
I
think,
evidence
to
support
these
findings
but,
even
if
there
were
not,
it
is
not
for
the
Court
to
question
them,
for
Parliament
has
made
the
Minister
the
sole
judge
in
the
matter.
His
findings
as
to
the
existence
of
any
of
the
causes
or
reasons
specified
in
paragraphs
(a)
to
(e),
even
if
erroneous,
are
not
open
to
review
by
the
Court.
The
goods
in
the
present
case
having
been
imported,
and
the
Minister
having
found
the
existence
of
reasons
(a)
and
(e)
for
rendering
it
difficult
to
value
them
for
duty,
the
two
conditions
for
the
exercise
of
his
jurisdiction
to
determine
their
value
for
duty
were
satisfied
and
he
could
validly
make
his
determination.
The
Minister’s
determination
was,
I
think,
purely
an
administrative
act
within
the
jurisdiction
vested
in
him
by
Parliament
and,
there
being
no
provisions
for
appeal
from
it,
it
is
not
subject
to
review
by
the
Court.
This
was
settled
by
the
Supreme
Court
of
Canada
in
The
King
v.
Noxzema
Chemical
Company
of
Canada,
Ltd.,
[1942]
C.T.C.
21.
There
the
Court
had
to
consider
similar
powers
of
the
Minister
of
National
Revenue
under
section
98
of
the
Special
War
Revenue
Act,
R.S.C.
1927,
chap.
179,
as
amended
by
23-24
Geo.
V,
chap.
50,
section
20,
which
reads
as
follows:
98.
Where
goods
subject
to
tax
under
this
Part
or
under
XI
of
this
Act
are
sold
at
a
price
which
in
the
judgment
of
the
Minister
is
less
than
the
fair
price
on
which
the
tax
should
be
imposed,
the
Minister
shall
have
the
power
to
determine
the
fair
price
and
the
taxpayer
shall
pay
the
tax
on
the
price
so
determined.
The
Minister
had
found
that
the
prices
obtained
by
the
respondent
from
sales
to
a
distributor
were
less
than
the
fair
prices
on
which
sales
tax
and
excise
tax
should
be
imposed
and
had
determined
the
fair
price
on
which
the
taxes
payable
by
the
respondent
should
be
imposed.
In
this
Court
Maclean
J.
held
that
the
determination
by
the
Minister
was
not
conclusive,
but
the
Supreme
Court
of
Canada
unanimously
took
a
different
view.
Davis
J.,
speaking
of
the
Minister’s
duty,
said
at
page
180
:
My
own
view
is
that
it
is
a
purely
administrative
function
that
was
given
to
the
Minister
by
Parliament
in
the
new
sec.
98;
.
.
.
If
that
be
the
correct
interpretation,
in
point
of
law,
of
the
section
in
question,
then
the
administrative
act
of
the
Minister
is
not
open
to
review
by
the
Court.
It
is
to
be
observed
that
no
statutory
right
of
appeal
is
given.
Kerwin
J.
was
more
specific
and
definite
in
his
statement.
At
page
185,
he
said
:
We
cannot
be
aware
of
all
the
reasons
that
moved
the
Minister
and,
in
any
event,
his
jurisdiction
under
section
98
was
dependent
only
upon
his
judgment
that
the
goods
were
sold
at
a
price
which
was
less,—not,
be
it
noted,
less
than
what
would
be
a
fair
price
commercially
or
in
view
of
competition
or
the
lack
of
it,—but
less
than
what
he
considered
was
the
fair
price
on
which
the
taxes
should
be
imposed.
The
legislature
has
left
the
determination
of
that
matter
and
also
of
the
fair
prices
on
which
the
taxes
should
be
imposed
to
the
Minister
and
not
to
the
Court.
In
my
view,
section
98
confers
upon
the
Minister
an
administrative
duty
which
he
exercised
and
as
to
which
there
is
no
appeal.
He
then
quoted
with
approval
the
principle
laid
down
by
the
House
of
Lords
in
Spackman
v.
Plumstead
District
Board
of
Works
(1885),
10
A.C.
229
at
235.,
where
the
Earl
of
Selborne
L.C.
said
:
And
if
the
legislature
says
that
a
certain
authority
is
to
decide,
and
makes
no
provision
for
a
repetition
of
the
inquiry
into
the
same
matter,
or
far
a
review
of
the
decision
by
another
tribunal,
prima
facie,
especially
when
it
form,
as
here,
part
of
the
definition
of
the
case
provided
for,
that
would
be
binding.
I
am,
therefore,
of
the
view
that,
when
goods
are
imported
into
Canada,
the
Minister
has
power
to
find
that
it
is
difficult
to
determine
their
value
for
duty
for
any
one
or
more
of
the
causes
or
reasons
specified
in
paragraphs
(a)
to
(e)
of
section
41
of
the
Customs
Act;
that
his
findings
thereon,
even
if
erroneous,
are
not
subject
to
review
by
the
Court;
that,
having
made
such
findings,
the
Minister
may
determine
the
value
for
duty
of
such
goods;
that
such
determination
is
an
administrative
act;
that
it
is
conclusive
of
the
value
upon
which
the
duty
on
such
goods
is
to
be
computed
and
levied;
and
that
it
is
not
subject
to
review
by
the
Court.
It
was
contended
for
the
defendant
that
the
Minister’s
determination
was
a
reversal
of
the
appraisal
by
the
Chief
Dominion
Customs
appraiser
and
that
effect
should
not
be
given
to
it
unless
it
could
be
shown
that
Parliament
had
conferred
upon
the
Minister
power
to
reverse
an
existing
appraisal.
I
am
unable
to
accept
this
view.
Clearly,
of
course,
the
determination
under
section
41
and
the
appraisal
under
48
cannot
both
stand.
If
the
Minister’s
determination
is
valid
and
referable
to
the
goods
imported
by
the
defendant,
the
appraisal
may
be
disregarded.
The
question
is
which
valuation
is
valid,
the
appraisal
or
the
determination
;
if
the
latter
is
valid
the
former
is
not.
The
question
is
not
whether
a
power
of
reversing
an
existing
appraisal
has
been
conferred
upon
the
Minister
at
all,
but
rather
whether
the
Minister
has
validly
exercised
the
jurisdiction
conferred
upon
him
by
Parliament.
If
he
has,
he
need
not
concern
himself
with
whether
there
has
been
an
appraisal
or
not,
for
it
is,
I
think,
obvious
that
if
the
Minister
has
validly
determined
the
value
for
duty
of
specific
goods
under
section
41,
no
appraiser
has
any
right
to
make
an
appraisal
in
respect
of
the
same
goods.
In
the
field
of
jurisdiction
assigned
to
the
Minister
there
is
no
place
for
the
appraiser.
If
the
Minister
finds,
for
example,
that
the
goods
are
not
sold
for
home
consumption
in
the
country
of
export,
of
which
he
is
the
sole
judge,
the
jurisdiction
to
determine
their
value
for
duty
belongs
to
him
and
not
to
the
appraiser.
It
was
also
contended
that
section
41
did
not
apply
when
an
appraisal
had
been
made
and
the
duty
on
the
goods
had
been
paid,
but
was
applicable
only
when
the
appraiser
found
that
he
could
not
make
an
appraisal
because
there
was
no
home
market
in
the
country
of
export.
Related
to
this
contention,
but
not
entirely
consistent
with
it,
was
the
argument
that
the
deter
mination
by
the
Minister
does
not
affect
goods
already
imported
but
is
applicable
only
to
goods
to
be
imported
in
the
future.
It
was
argued
that
the
words
‘‘are
imported’
‘
in
section
41,
when
used
with
regard
to
goods,
cannot
refer
to
goods
that
have
been
imported
but
must
refer
only
to
goods
that
are
being
imported,
and
that
the
words
‘‘the
value
so
determined
shall,
until
otherwise
provided,
be
the
value
upon
which
the
duty
on
such
goods
shall
be
computed
and
levied’’
clearly
contemplate
future
use
of
the
determination.
The
contention
generally
was
that
section
41
was
not
retrospective
in
effect
but
prospective
only.
There
are
a
number
of
reasons
why
this
view
cannot
be
adopted.
Whether
section
41
has
retrospective
effect
is
not
really
involved
at
all.
The
section
gives
the
Minister
jurisdiction
to
deal
with
a
specific
matter,
namely
a
specific
importation
of
goods
when
such
goods
are
imported
into
Canada
under
the
circumstances
and
conditions
specified.
That
is
to
say,
there
must
have
been
an
importation
of
goods
before
he
can
exercise
any
jurisdiction.
An
analysis
of
the
various
causes
or
reasons
specified
in
paragraphs
(a)
to
(e)
shows
that
a
number
of
them
relate
to
matters
that
must
be
subsequent
to
the
importation
of
the
goods.
We
are
concerned
only
with
reasons
(a)
and
(e).
Reason
(a)
is
one
that
must
exist
before
or
at
the
time
of
importation
but
reason
(e)
relates
to
a
condition
that
can
exist
only
after
the
time
of
importation.
The
Minister
must
apply
his
mind
to
the
specific
goods
that
have
been
imported
and
the
circumstances
and
conditions
which
render
it
difficult
to
determine
their
value
for
duty
and
in
order
to
make
his
findings
in
respect
thereto
he
must
consider
not
only
the
state
of
things
in
the
country
of
export
but
also
what
has
happened
in
Canada
with
reference
to
the
said
goods.
Then,
when
he
has
made
his
findings,
he
may
determine
the
value
for
duty
of
‘‘such’’
goods,
that
is
to
say,
the
very
goods
whose
importation
and
subsequent
disposition
gave
him
his
jurisdiction
to
determine
their
value
for
duty.
Similarly,
when
it
is
provided
that
the
value
determined
by
the
Minister
shall
be
the
value
upon
which
the
duty
shall
be
computed
and
levied
it
is
the
duty
on
‘‘such’’
goods
that
is
specified,
that
is,
the
specific
goods
whose
importation
and
subsequent
disposition
caused
him
to
make
his
enquiries,
his
findings
and
his
determination.
I
think
it
is
clear,
on
the
grammatical
construction
of
the
section,
that
the
Minister’s
determination
was
referable
to
the
canned
corned
beef
imported
by
the
defendant
during
1940
to
1942.
Section
41
should
be
read
in
the
light
of
section
2,
subsection
2,
which
provides
as
follows:
2.
2.
All
the
expressions
and
provisions
of
this
Act,
or
of
any
law
relating
to
the
Customs,
shall
receive
such
fair
and
liberal
construction
and
interpretation
as
will
best
ensure
the
protection
of
the
revenue
and
the
attainment
of
the
purpose
for.
which
this
Act
or
such
law
was
made
according
to
its
true
intent,
meaning
and
spirit.
The
adoption
of
the
defendant’s
contention
would
run
counter
to
this
guide
to
the
interpretation
of
the
Act
in
that
it
would
lead
to
anomalous
results
and
permit
the
importation
of
goods
at
values
for
duty
not
contemplated
by
the
Act.
If
section
41
did
not
apply
to
the
importation
of
goods
that
had
been
appraised
and
the
determination
by
the
Minister
were
referable
only
to
goods
being
imported
but
not
appraised
or
to
goods
to
be
imported
in
the
future
it
would
mean
that
when
goods
have
been
imported
and
appraised
by
the
original
appraiser
at
the
port
of
entry
and
the
duty
has
been
paid,
and
it
is
then
shown
that
the
goods
were
not
sold
for
home
consumption
in
the
country
of
export,
the
original
appraisal
would
have
to
stand,
for,
under
the
contention
put
forward,
no
one
would
be
able
to
review
it
if
the
Minister
should
make
a
determination
under
section
41
as
he
did
in
the
present
case.
The
Minister’s
finding
that
the
goods
were
not
sold
for
home
consumption
in
the
country
of
export
would
make
it
impossible
for
the
Chief
Dominion
Customs
appraiser
to
act
under
section
48,
for
the
case
would
then
fall
outside
of
section
35
and
he
could
not
find
the
fair
market
value
in
accordance
with
the
basis
laid
down
by
such
section.
Likewise,
if
the
Minister’s
determination
were
not
referable
to
the
goods
already
imported,
he
also
would
be
powerless
to
act.
This
would
mean
that
the
appraisal
would
stand
without
review
and
that
the
goods
would
have
been
imported
at
a
value
for
duty
not
in
accord
with
section
35,
which
is
a
governing
section.
Such
a
result
is
so
anomalous
as
to
warrant
the
rejection
of
an
interpretation
that
will
lead
to
it.
Moreover,
if
the
original
appraisal
were
to
stand
under
the
circumstances
mentioned,
it
would
be
tantamount
to
saying
that
the
appraisal
was
conclusive,
even
if
the
goods
were
not
sold
for
home
consumption
in
the
country
of
export.
Not
only
would
this
run
counter
to
section
395,
but
it
would
also
involve
a
right
on
the
part
of
the
original
appraiser
to
decide
whether
the
case
falls
within
section
35
or
not.
He
has
no
power
to
make
such
a
decision,
for
only
the
Minister
is
empowered
to
make
it.
The
adoption
of
the
defendant’s
contention
would
also
run
counter
to
section
41,
for
it
would
imply
a
right
in
the
original
appraiser
to
make
a
decision
which
he
has
no
power
to
make
and
thus
oust
the
Minister’s
jurisdiction
in
a
matter
of
which
he
is
the
sole
judge.
A
reference
to
section
43
will
also
show
that
the
defendant’s
contention
is
untenable.
Section
43
is
clearly
prospective
in
effect.
It
provides
for
the
fixing
of
values
for
duty
for
the
future
in
respect
of
certain
classes
or
kinds
of
goods
where
the
conditions
specified
by
the
section
appear
to
exist.
Section
41
does
not
deal
with
classes
or
kind
of
goods
but
with
specific
goods
imported
under
specified
circumstances
and
conditions
and
the
Minister
is
given
power
to
determine
the
value
for
duty
of
"such''
goods.
If
it
had
been
intended
to
make
the
Minister’s
determination
referable
only
to
goods
to
be
imported
in
the
future
similar
to
the
goods
already
imported,
Parliament
would
have
made
such
intention
clear
by
the
use
of
words
other
than
those
used.
Section
41
would
then
more
properly
have
been
incorporated
in
section
43.
It
is
not
meant
to
cover
a
future
situation
but
an
existing
one.
It
was
designated
to
fill
a
gap
which
the
appraisers
have
no
power
to
fill
and
for
which
section
43
makes
no
provision.
There
is
further
authority
for
rejecting
the
defendant’s
contention.
In
the
Noxzema
Case
(supra),
section
98
of
the
Special
War
Revenue
Act
gave
the
Minister
power
to
act.
When
goods
subject
to
tax
under
this
Part
or
under
Part
•
Al
of
this
Act
arc*
sold
at
a
price.
.
.
.
In
that
case
the
sales
were
made
during
a
period
prior
to
the
Minister’s
determination.
There
was
no
question
there
of
the
Minister’s
determination
being
referable
only
to
sales
in
the
future;
it
was
clearly
applicable
to
specific
sales
already
made
by
the
respondent.
The
words
used
in
section
98
of
the
Special
War
Revenue
Act
are
‘‘are
sold.’’
In
section
41
of
the
Customs
Act
the
words
used
are
‘‘are
imported.’’
In
both
cases
the
Minister
is
given
power
to
make
a
determination
in
respect
of
specific
goods,
in
the
one
case
in
respect
of
goods
already
sold,
and
in
the
other
in
respect
of
goods
already
imported.
It
is,
in
my
opinion,
quite
clear
that,
when
the
Minister
makes
a
valid
determination
under
section
41,
his
determination
is
not
prospective
in
effect
but
is
referable
to
the
specific
goods
whose
importation
and
subsequent
disposition
caused
him
to
make
his
enquiry
and
determination.
The
determination
by
the
Minister
in
the
present
case
is,
therefore,
the
value
upon
which
the
duty
on
the
canned
corned
beef
imported
by
the
defendant
during
the
years
1940
to
1942
is
to
be
computed
and
levied.
The
additional
amount
found
payable
by
the
defendant
as
the
result
of
such
determination
is,
under
section
112
of
the
Act,
a
debt
due
and
payable
to
His
Majesty,
and
the
plaintiff
is
entitled
to
recover
it
from
the
defendant.
Under
these
circumstances
it
is
unnecessary
to
deal
further
than
I
have
done
with
the
contentions
of
the
parties
relating
to
the
appraisal
made
by
the
Chief
Dominion
Customs
appraiser.
The
powers
of
the
Minister
under
section
41
of
the
Act
are
very
wide
and
might
conceivably
be
abused
without
any
power
on
the
part
of
the
Court
to
intervene.
While
the
exercise
of
the
powers
in
the
present
case
seems
to
bear
harshly
upon
the
defendant,
it
must
be
borne
in
mind
that
the
Court
is
not
aware
of
all
the
facts
that
may
have
caused
the
Minister
to
make
his
determination.
In
any
event,
the
Court
cannot
concern
itself
with
the
wisdom
of
the
policy
or
the
harshness
of
its
effects
in
any
given
case,
for
these
are
matters
for
Parliament
to
determine.
The
Court
must
confine
itself
strictly
to
interpretation
of
the
law
as
laid
down
by
Parliament.
In
my
opinion,
the
Minister
acted:
within
his
jurisdiction
in
his
determination
of
value
for
duty,
dated
August
19,
1943,
the
determination
is
referable
to
the
canned
corned
beef
imported
by
the
defendant
during
1940,
1941
and
1942
and
the
defendant
is
liable
for
the
amount
of
additional
customs
duty
and
taxes
found
by
the
Minister
to
be
payable.
There
will,
therefore,
be
judgment
for
the
plaintiff
for
$49,312.03,
and
costs.
Judgment
accordingly.
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