TMI Blog1946 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The terms of Section 86(1) of the Special War Revenue Act, under which the Crown seeks to impose liability on the Dominion Company are as follows: "86. (1) There shall be imposed, levied and collected a consumption or sales tax of 8 per cent. on the sale price of all goods- (a) produced or manufactured in Canada, payable by the producer or manufacturer at the time of the delivery of such goods to the purchaser thereof. Provided that in the case of any contract for the sale of goods wherein it is provided that the sale price shall be paid to the manufacturer or producer by instalments as the work progresses, or under any form of conditional sales, agreement, contract of hire-purchase or any form of contract, whereby the property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of final shipment or offer of shipment of the apparatus from the Dominion Company's works. The contract expressly provided that the property and right of possession of the apparatus should not pass from the Dominion Company to the Pulp Company until all the stipulated payments should have been fully made in cash. The first six progress payments were made by the Pulp Company to the Dominion Company, the last payment being made on 11th January, 1938, of the instalment due on 5th December, 1937, which was delayed because the Dominion Company had fallen behind with the construction of the machine. Sales tax was paid by the Dominion Company on each of these instalments. Early in February, 1938, the Dominion Company became awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods may be delivered on credit and the purchaser may default in payment. In the present case, however, the goods were never delivered and the general rule is inapplicable. But the leading words of the enact- ment are followed by two provisos, which are both designed to qualify the generality of the main rule in the matter of delivery. The first proviso introduces the conception of a notional delivery which is to be held to take place in certain specified cases, a feature of which is that the property in the goods sold does not pass to the purchaser until a future date. In particular where the contract provides that the sale price shall be paid to the manufacturer or producer as the work pro- gresses the tax is to be payable pro tanto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny to the Pulp Company. The proviso enacts that "in any case" where there has been no physical delivery the tax is to be payable when the property passes. The property in the goods in question has never passed to the Pulp Company. Consequently the tax has never become payable. If proviso 2 is repugnant in any way to proviso I it must prevail for it stands last in the enactment and so, to quote Lord Tenterden, C.J., "speaks the last intention of the makers ": Rex v. Justices of Middlesex(1). The last word is with the respondent, the Dominion Company, and must prevail. Their Lordships recognise that the result of their view may lead to anomalies. It would indeed have absolved the Dominion Company from liability to pay sales tax on the six i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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