Caribbean Cement Company Ltd v The Collector General

• Jurisdiction: Jamaica
• Judge: Marsh, J.
• Judgment Date: 02 March 1973
• Court: Revenue Court (Jamaica)
• Docket Number: 17 of 1972
• Date: 02 March 1973

Revenue Court

Marsh, J.

17 of 1972

Caribbean Cement Company Ltd.

and

The Collector General

Appearances:

Br. L.G. Barnett instructed by Messrs. Milholland, Ashenheim & Stone for the appellant.

Mr. V.O. Maxwell, Mr. R.G. Langrin for the respondent.

Revenue Law - Customs Duties

Marsh, J.

1 This is an appeal from a decision of the respondent made on the 7 ^th September 1972 whereby it was ordered that certain equipment imported by the appellant for use in its factory at Rockfort, should be classified under Item # 732.03 of the First Schedule to the Customs Tariff (Revision) Resolution 1954 as a – “road Motor Vehicle, complete not elsewhere specified”; and that the duty payable thereon was $3,470.66. The equipment in question is an industrial machine described or known as, a “Tennant 92 Industrial Power Sweeper”.

2 Before me it was contended for the appellant that the respondent's classification was wrong and that the equipment should have been classified under Item # 716.13.9 or Item #713.01 of the aforesaid Tariff Resolution.

3 Evidence was given on behalf of the appellant by Donald Lloyd Mattis, a Motor Vehicle Examiner employed by the Ministry of works and on behalf of the respondent, by Stanley Rockwell Myers, Deputy Collector General in charge of the Customs Division of the Collector General's Department. A number of exhibits were also tendered in evidence including a brochure printed in colour and issued by the manufacturers of the equipment and including its specifications.

4 Item #732.03 of the Tariff Resolution is to be found in Division 73 thereof, which deals with “transport equipment”, and is located under the sub-heading “Road Motor Vehicles” and reads as follows–

“Item # 732.03 buses, trucks, lorries and road motor vehicles complete, not elsewhere specified”,

5 It follows from this that the respondent's classification of the equipment implicitly embodies an allegation that it is a Road Motor Vehicle. For reasons which will presently appear, I do not accept that this machine is a Road Motor Vehicle in the ordinary meaning of that expression, although on the evidence it may be capable of being used on the roads. However, the fact that it may be/used in an emergency, or for some limited special purpose, is not sufficient on my understanding approach to be taken to the Tariff, to bring it within Item #732.03 thereof.

6 The Items of the Tariff relied on by the appellant be found in Division 71, which deals with “machinery other than electrical machinery”.

7 Item 713.01 appears under the sub-heading “Tractors other than Steam” and reads as follows–

“Item 713.01 — Tractors other than steam (but excluding road motor tractors)”.

8 The other item relied on by the appellant, namely item #716.13.9, is located in the same Division and appears, the sub-heading — “Mining Construction and other Industrial Machinery”, and reads–

“Item #716.13.9 — Other”.

9 The respective rates of duty payable under all of these are as follows–

• (i) Under Item #732.03–20% ad valorem under the Preferential Tariffs and 40% ad valorem under the General Tariff;

• (ii) Under Item # 713.01 the rate is - free preferential and 5% ad valorem general;

• (iii) Under Item # 716.13.9 the rate is - free preferential and 5% ad valorem general.

10 In his evidence Mr. Mattis stated that in its present form the Tennant Sweeper could not be issued with a general certificate of fitness under the Road Traffic Regulations and that it fell into that category of vehicles which required a special permit or certificate. He further explained that the latter type of permit was usually issued where the vehicle had no road springs and other essentials such as a speedometer, and that in his examination of the vehicle he found that it was not fitted with road springs and had no speedometer. In his view if he had to classify the vehicle, he would classify it as a tractor. He also admitted under cross examination, however, that the sweeper was a motor vehicle and could be used on the road specially adapted and if a special permit could be obtained. He also admitted that he had not examined the vehicle for purposes of Customs Duty.

11 The evidence of Mr. Myers dealt chiefly with the procedure adopted by his Department in classifying goods for purposes Customs Duty.

12 In Falkiner v. Whitton 1917, 106, Lord Atkinson, in delivering a Judgment of the Judicial Committee, which dismissed an appeal by an importer in Australia, against an assessment to Customs Duty under Schedule A of the Australian Customs Tariff 1911, made the following observation, at page 110, in connection with the Australian Tariff–

“lt also appears from an examination...