Tees & Persse Ltd. v. The King / Watt & Scott (Toronto) Ltd. v. The King / Weddel Limited v. The King

Tees & Persse Ltd. v. The King / Watt & Scott (Toronto) Ltd. v. The King / Weddel Limited v. The King
Collection
Supreme Court Judgments
Date
1946-05-20
Report
[1946] SCR 499
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Hudson, Albert Blellock; Rand, Ivan Cleveland; Estey, James Wilfred
On appeal from
Canada
Subjects
Taxation
Decision Content
Supreme Court of Canada
Tees & Persse Ltd. v. The King / Watt & Scott (Toronto) Ltd. v. The King / Weddel Limited v. The King, [1946] S.C.R. 499
Date: 1946-05-20
Weddel Limited (Defendant) Appellant;
and
His Majesty The King (Plaintiff) Respondent.
Watt & Scott (Toronto) Ltd. (Defendant) Appellant;
and
His Majesty The King (Plaintiff) Respondent.
Tees & Persse Limited (Defendant) Appellant;
and
His Majesty The King (Plaintiff) Respondent.
1946: February 27; 1946: May 20.
Present: Rinfret C.J. and Kerwin, Hudson, Rand and Estey JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Revenue—Customs duty—Goods imported and duty paid according to value fixed at port of entry—Minister's (National Revenue) power to re-determine value of goods for duty—Imposition of additional duty—Applicability of such power to goods already imported—Construction of section 41 of the Customs Act—Whether Minister's power is referable to past as well as to future importations—Alleged reappraisal by Customs appraiser under section 48—Whether Crown can claim, in the present cases, additional duty under such re-valuation—Customs Act, R.S.C. 1927, c. 42 and amendments, sects. 4, 19, 20, 35, 38, 39, 40, 41, 42, 43, 48, 52, 111, 112.
Section 41 of the Customs Act provides that "whenever goods are imported into Canada under such circumstances or conditions as render it difficult to determine the value thereof for duty because" of several enumerated causes or reasons, as to the existence of which the Minister of National Revenue shall be the sole judge, "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."
The appellants during 1940, 1941 and 1942 imported into Canada large quantities of canned corned beef from Argentine, Uruguay and Brazil and paid customs duty based on the values at which the goods were entered for customs. In December 1942, it being considered that the goods had been undervalued, the Crown alleged that the Chief Dominion Customs appraiser, purporting to act under section 48, made fresh appraisals and sent the appellants a statement showing such appraised values and the amount of underpaid duty and taxes. Protests were made by the appellants and the matter was referred to the Minister of National Revenue, who, in August 1943, acting under the provisions of section 41, re-determined the value for duty of the goods imported by each of the appellants, and additional customs duty and taxes were demanded from them. Actions were brought to recover in each case such additional amount, or, in the alternative, the additional amount resulting (as contended) from the re-appraisal by the Chief Dominion Customs appraiser. The appellants submitted that the Minister had no jurisdiction under section 41 to determine increased values for duty purposes in respect of individual past importations on which duty had been assessed by the proper officer and paid and the goods released; and they also contended that the power vested in the Customs appraiser by section 48 was not and could not be exercised in these cases.
Held, The Chief Justice and Rand J. dissenting, affirming the judgments of the Exchequer Court of Canada ([1945] Ex. C.R. 97 and 111), that the appellants were liable for the additional duty claimed by the Crown in accordance with the re-valuation determined by the Minister of National Revenue—Section 41 is not solely prospective in its application. Parliament, when dealing in that section with cases where it was difficult to determine the value, was still dealing with goods that have actually been imported and appraised, upon which duty may also have already been paid; and the Minister was given power to determine the value for duty of such goods. Per Estey J.:—Moreover, section 41 does not impose any time limit within which the Minister may act after importation.
Per The Chief Justice and Rand J. (dissenting).:—The Minister's power, under section 41, to determine the value for duty of imported goods, is not referable to past importations, which have already been legally appraised. Such power is restricted to future importations: it must be exercised at the time the importation takes place and the Minister's ruling must be antecedent to a valid allowance of the entry.
Held that the Crown cannot succeed on its alternative claim. There is no satisfactory evidence that a fresh appraisement under section 48 has been made by a Dominion appraiser and that there was any direction by him for an amended entry and payment of the additional duty. If that had been done, the appellants might have exercised their right to a re-valuation by a board selected under section 52.—Per The Chief Justice:—The alternative argument suggested by the Crown shows by itself that it has no basis in fact: both the Minister under section 41 and the Dominion appraiser under section 48 could not act at the same time, and the evidence establishes that what was done here was a determination by the Minister.
APPEALS from the judgments of the President of the Exchequer Court of Canada[1], maintaining actions by the Crown, on informations of the Attorney General of Canada, to recover from each of the appellants the additional amount of customs duty and taxes resulting from the determination by the Minister of National Revenue of the values for duty of certain goods imported into Canada in excess of those at which they had been entered for duty.
Aimé Geoffrion K.C. for the appellants.
J. Singer K.C. and W. R. Jackett for the respondent.
The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.
The Chief Justice (dissenting): These three cases were heard together and I intend to dispose of them by the same reasons.
The facts, as stated in the judgments of the learned President of the Exchequer Court[2], are as follows:
During the years 1940, 1941 and 1942, the appellants imported into Canada large quantities of canned corn beef from Argentine, Uruguay and Brazil and paid custom duties based on the value at which the goods were entered for customs.
On December 16, 1942, the Commissioner of Customs of the Department of National Revenue notified the appellants that the importations appeared to have been undervalued and that he proposed to instruct the collectors at the various ports where their entries had been passed, to call for amending entries, accounting for additional duty on appraised values on all entries passed by them since January 1, 1940.
After correspondence between the department and the appellants, or their representatives, the Department of National Revenue made an appraisal of the value of the imported goods, in excess of those at which they had been entered for duty, and directed the appellants to make amended entries and to pay additional customs duty and taxes; and, on April 6, 1943, it sent the appellants statements showing such appraised values and the amount of underpaid duties and taxes. No appeal from the appraisals was taken, but representations protesting against this were made to the Department by the appellants and their representatives.
Subsequently, the matter was referred to the Minister of National Revenue, and, on June 29, 1943, the Minister advised the appellants' representatives, 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 determination 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 appellants' representatives and by their counsel. Further written representations were also made. Finally, on August 19, 1943, the Minister made his determination to the effect that, on reviewing the circumstances and conditions of importation, it appeared to him and he found that such circumstances and conditions rendered 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.
The Minister accordingly determined
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 (and the other appellants), shall be as set forth in the statement attached as Schedule "A" hereto.
In the case of Weddel Limited, the schedule showed that the amount of additional customs duty and taxes payable by them amounted to $49,312.03.
The Deputy Minister of National Revenue (Customs and Excise) notified the appellant of the Minister's determination, sent a copy of the schedule and required the entries to be amended not later than September 2, 1943.
On the appellant's refusal to pay any additional duty or taxes, this action was brought, claiming the additional amount of customs duty and taxes resulting from the determination of the Minister, under section 41 of the Customs Act, (R.S.C. 1927, c. 42) and, in the alternative, the additional amount resulting (as contended) from the appraisal by the Chief Dominion Customs appraiser purporting to act under section 48.
In the Watt and Scott (Toronto) Limited case, the facts are the same except that the judgment is for $158,215.18; and the appellant suggests that there are two differences: no details were asked in this case, and the appellant is not a principal but only the agent of the owner.
In the Tees and Persse Limited case, the judgment is for $68,825.30, and it is subject to the same two differences as in the Watt and Scott case.
As already stated, the Minister purported to have acted under sections 41 and 48 of the Customs Act.
These two sections read as follows:
Section 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 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 learned President gave judgment against each of the appellants for the amounts claimed by the respondent. On behalf of the appellants, it is contended that the Chief Dominion Customs appraiser did not make any appraisal of the value of the imported goods in excess of those at which they had been entered for duty, and did not direct the appellants to make amended entries and pay additional duty and taxes, as it is suggested in the judgment appealed from.
According to the appellants, this was done by the Commissioner of Customs; and the point may be one of importance in connection with the alternative ground in the Minister's decision and in the action of the respondent.
The appellants submitted that these judgments were erroneous because, under section 41 of the Customs Act, the Minister had no jurisdiction to determine increased values for duty purposes in respect of individual past importations on which the duty had been assessed by the proper officer and paid, and the goods released. The appellants also claimed that the power vested in the Dominion Customs appraiser by section 48 of the Customs Act was not and could not be exercised in this case.
Under section 112 of the Customs Act, the true amount of Customs duty payable to His Majesty with respect to any goods imported into Canada shall, from and after the time when such duty should have been paid or accounted for, constitute a debt due and payable to His Majesty, jointly and severally, from the owner of the goods at the time of the importation thereof, and from the importer, as the case may be.
Under section 111, the importation is deemed to have been completed from the time the goods are brought within the limits of Canada.
Under section 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 they were exported directly to Canada; and the Minister may determine the value 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, under regulations prescribed by the Minister.
But if the goods imported into Canada are under such circumstances or conditions as render it difficult to determine the value thereof for duty because of some of the reasons stated in section 41, 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.
If one compares section 35 and section 41, it would seem, at first glance, that in the case of section 35 what is contemplated is a ruling ("under regulations prescribed by the Minister") which applies whenever the goods do not come under one of the conditions inserted in section 41.
There are some exceptions covered by sections 42 and 43 in respect of medicinal or toilet preparations or the valuation of imports considered as prejudicially or injuriously affecting Canadian producers.
We are not concerned with the latter.
Under ordinary circumstances, 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 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 importer pays duties then and there upon taking possession of the goods.
The decision of any appraiser or collector as to the principal markets of the country, or as to the fair market value of goods for duty purposes, is subject to review by the Board of Customs; and, in that respect, the decision of the Board of Customs, when approved by the Minister, is final and conclusive, except as otherwise provided in the Act. Then, under section 52, if the importer is dissatisfied with the appraisement made of any such goods by the appraiser he may within six days give notice in writing to the collector of such dissatisfaction. Upon receipt of such notice, the collector shall at once notify the importer to select one disinterested and experienced person familiar with the character and value of the goods in question, and the collector shall select a second person of similar knowledge and notify the importer of such appointment.
Then, the persons so selected, together with a third selected by the Minister from among the Dominion appraisers, shall examine and appraise the goods in accordance with the provisions of the Act, and the decision arrived at either unanimously or by a majority of them, shall be reported to the collector and shall be final and conclusive, and the duty shall be levied and collected accordingly.
It should be stated that all customs officers are local appraisers under the Act; and that, therefore, when the goods of the appellants in the present cases were imported into Canada and Were appraised by the Customs' officers acting as local appraisers and, the duties having been paid as assessed and asked for, the appellants took possession of their goods, everything required by the Customs Act had been complied with.
I think the several sections to which I have just referred indicate correctly the whole scheme of the collection of duties for customs purposes provided for by the Act.
Such scheme therefore appears to be as follows:
Upon arrival of the goods in Canada, the value thereof is ascertained by the local customs officer acting as appraiser; and, in the ordinary course of events, the duties are paid and the goods handed over to the importer. It may be that the value of the goods imported was already determined and has to be computed and levied under regulations prescribed by the Minister in conformity with section 35 of the Act.
The appraisal of the Customs officer is subject to review by the Board of Customs in accordance with subsection 4 of section 38, or may be made the subject of another appraisement by three disinterested and experienced persons, under the provisions of section 52.
The decision of the Board of Customs in the first case, when approved by the Minister, is final and conclusive; and so is the decision of the three appraisers under section 52.
But, if it should happen that the goods imported into Canada are under one or more of the circumstances or conditions mentioned in section 41, then the local Customs officers are not to act as appraisers; sections 35, 38 and 52 do not apply, and section 41 alone states what should be done:
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.
In those cases, the Minister is the sole judge as to the existence of all or any of the causes or reasons enumerated in section 41.
In the present case, the local appraisers, when the goods were imported, acted under sections 35 and 38 of the Act. There was no review of the decision made by the Board of Customs, under section 38, subsection 4, nor was there any notice of dissatisfaction and consequential appraisement under section 52.
In my view, therefore, there the whole matter lies. The several provisions of the Act covering the situation had been fully satisfied and there was no coming back against the importers, subject to what may be said about section 48.
It was only if, at the time of the importation (n.b. section 41: "whenever goods are imported into Canada" etc.,) on account of one or more of the reasons enumerated in section 41, the Customs officers acting as local appraisers found themselves unable to ascertain the fair market value, that the Minister was called upon to determine the value of the goods, upon which duty on such goods shall be computed and levied.
But it is only at that time and that is to say: at the time when the importation took place that the Minister could act under section 41. There is nothing in that section which authorizes the Minister and gives him jurisdiction to determine increased value for duty purposes in respect of individual past importations on which the duty has already been assessed by the proper officer, paid, and the goods released.
The alternative contemplated by the Customs Act is that either the appraisal takes place by the local Customs officers or it must be then and there made by the Minister, provided one of the conditions enumerated in section 41 applies.
The first alternative took place; the goods were appraised by the officer entitled to make the appraisal; the duty was paid; the goods were released; and that was complete compliance with the provisions of the Customs Act. The Minister had no jurisdiction to interfere and more particularly several years after the goods had been released.
If there was cause for dissatisfaction, the matter came under the jurisdiction of the Board of Customs or is covered by section 52 of the Act.
The Minister now says in his decision that these were not cases for the local appraisers, but rather cases coming under section 41 and where he alone could act.
I could not find anything in section 41 giving him that power and authority, more particularly three years after the whole scheme of the Customs appraisal had been gone through in accordance with the Act.
There remains the new point very forcibly raised by Mr. Singer at the argument before this Court.
He said that even if the Minister, in the premises, was lacking of authority to act under section 41, in the alternative the Dominion appraiser could reopen the question by force of section 48; and he endeavoured to show that a re-appraisal had really been made by the Dominion appraiser in such a way that the determination of the value for duty of the goods in question was thereby made and supports the claims of the respondent in these several cases.
Section 48 of the Customs Act may be again quoted here:
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.
Under section 4 of the Customs Act,
there may be appointed * * * appraisers to be called Dominion Customs appraisers and assistant Dominion Customs appraisers, with jurisdiction at all ports and places in Canada; and Customs appraisers and assistant Customs appraisers with jurisdiction at such ports and places in Canada as are designated in an Order-in-Council in that behalf.
They shall, before acting as such, take a prescribed oath of office. If no appraiser is appointed in any port of entry, the collector there acts as appraiser, but without taking any special oath of office as such; and every appraiser is deemed an officer of Customs.
The Dominion appraiser is independent of the Department and, when he acts under section 48, he does so as a special officer with, as may be seen, the same powers as the Board of Customs.
For the purposes of section 48, they are both put on exactly the same footing.
It so happens that when the appellants were negotiating with the Department in connection with the announced intention that their goods were to be re-appraised and that the entries were to be amended, some of the correspondence exchanged between the Department and the appellants was signed by the then Dominion appraiser. But I could not interpret that correspondence to mean that the Dominion appraiser was at the time acting as such, and surely that intention was nowhere conveyed to the appellants.
The Department and the Minister were then purporting to act under section 41; the Dominion appraiser, who apparently was then also an employee of the Department, appears to have been carrying on some of the correspondence on behalf of the Department, and nowhere was it specifically mentioned that he was undertaking to act as a Dominion appraiser under section 48. It is not satisfactorily established that he made a reappraisal under that section, and that, under it, he directed an amended entry and payment of the additional duty.
The appellants were certainly not advised that he pretended to act under section 48; and one of the results to their prejudice, if it were to be so decided now, would be that they were deprived of the right to a re-valuation by a Board selected under section 52.
I do not find in the record any satisfactory evidence that proceedings were ever gone through in conformity with section 48; and moreover, I am of opinion that, in the circumstances, that could not have been done, since the whole matter was then before the Minister, avowedly acting under section 41.
By force of that section, it is for the Minister to determine the value for duty of such goods, and it is upon the value so determined by him that the duty on the goods shall be computed and levied.
Moreover, the Minister is the sole judge as to the existence of all or any of the causes or reasons enumerated in section 41.
It can not be contended that after the Minister has given his decision under section 41, the Dominion appraiser or the Board of Customs could yet review the case under section 48.
The Minister's determination is final for all purposes and the Dominion appraiser or the Board of Customs are ousted of any jurisdiction in the matter.
Likewise, when the case stands to be decided by the Minister under section 41, the Dominion appraiser or the Board of Customs could not step in and proceed to make a re-appraisal so to say pendente lite.
I simply look upon the suggestion that section 48 could be relied on to support the case of the respondent as a clever after-thought, upon the assumption that the assessments made in the present cases could not be otherwise supported.
The very fact that it is suggested as an alternative argument would in itself show that it has no basis in fact. Both the Minister, under section 41, and the Dominion appraiser, under section 48, could not act at the same time. It had to be one or the other; and the evidence is clearly to the effect that what was done here was a determination and a decision by the Minister under section 41.
I am therefore of the opinion that, for the purposes of these cases, section 48 must be eliminated.
We have before us the decision of the Minister made under section 41, and I have already indicated that the Minister had no power to make those decisions under that section, in the circumstances.
For these reasons, I would allow the appeals and dismiss the Informations with costs in both Courts.
The judgment of Kerwin and Hudson JJ. was delivered by
Kerwin J.:—An information was filed in the Exchequer Court of Canada by the Attorney General of Canada on behalf of His Majesty the King, claiming from Weddel Limited the sum of $49,312.03 as being the additional amount of customs duty and taxes resulting from a determination of the Minister of National Revenue, purporting to act under section 41 of the Customs Act, R.S.C. 1927, chapter 42 and amendments, and, in the alternative, the sum of $50,415.12 as being the additional amount of customs duty and taxes resulting from an alleged appraisal by the Chief Dominion Customs Appraiser, purporting to act under section 48. The President of the Exchequer Court of Canada, before whom the matter came, determined that the claim for $49,312.03 was well-founded, and he accordingly gave judgment for that amount and costs without dealing with the alternative claim. From that judgment Weddel Limited now appeals.
In its factum, the appellant agrees with the following statement of facts appearing in the judgment of the learned President, subject only to what it describes as an important inaccuracy:—
During 1940, 1941 and 1942 the defendant imported into Canada large quantities of canned corned beef from the 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 $104,031.00 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 June 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 determination 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, 1943, the Minister made his determination as follows:
Memorandum for: "19th August, 1943,
David Sim, Esq.,
Deputy Minister of National Revenue,
Customs Excise.
Whereas Messrs. Weddel Limited, Montreal, imported into Canada a quantity of canned beef duing 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.
Encl.
Colin Gibson
Minister of National Revenue."
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. The appellant claims that the Chief Dominion Customs Appraiser did not make any appraisement of the values of the imported goods at $104,031.00 in excess of those at which they had been entered for duty, and did not direct it to make amended entries and pay additional customs and taxes amounting to $50,415.12. I may say at once that, in my opinion, the respondent is unable to succeed on its alternative claim. The correspondence and evidence make it clear that even if the Chief Dominion Customs Appraiser made a fresh appraisement under section 48, there was no direction by him for an amended entry and payment of the additional duty. If that had been done, the appellant, under section 52 of the Act, might have given notice in writing, within the prescribed six days, of its dissatisfaction and proceedings would thereupon have ensued for the selection of three persons to examine and appraise the goods, in accordance with the provisions of the Act. Any direction given was by the Commissioner of Customs.
However, on the respondent's main claim, I have come to the same conclusion as the President although not for precisely the same reasons. The determination of this question involves a consideration of various sections of the Customs Act. Speaking generally, section 19 requires every importer of goods to make "due entry" of such goods, and by section 20, the person entering such goods is to deliver to the Collector of Customs, or other proper officer, an invoice and bill of entry in a prescribed form. This bill of entry, according to an exhibit filed, shows the importer's description of the goods imported, the quantity, the rate of duty, the value for duty in dollars, the total customs duty, the duty paid value, the war exchange tax, and the sales tax. In the present case the appellant paid, as it was obliged under section 22 to do, all duties and taxes so shown by it upon the canned corned beef it imported.
By subsection (1) of section 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. By subsection (1) of section 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.
It will be necessary later to revert to some of the other subsections of these sections but, in the meantime, section 41, under which the Minister purported to act, should be read in its entirety:—
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.
While other questions were apparently argued at the trial, the appellant's sole point in this appeal upon the Attorney General's main claim is on the construction of this section. Its contention is that the power given the Minister is either one to make a general ruling as to a class of importations for the future or, to quote its factum,
a power to choose individual past importations on which the duty has been assessed by the proper officer and paid and the goods released no matter how many years before, and determine a higher valuation and consequently, a higher duty whenever he thinks fit without there being any remedy. It may be conceded that if the section gives the Minister power to determine the value for duty of goods that have been imported and upon which duty has been paid, it may work a hardship in particular cases, depending, among other things, upon the length of time that has elapsed. However, it must be borne in mind that the Court does not know what information the Minister had before him and, as the appellant's counsel admits, this appeal is not, and could not be, on the merits of the decision of the Minister but is as to his jurisdiction.
Along with the relevant provisions of the Customs Act must be read subsection (1) of section 3 of the Customs Tariff Act, R.S.C. 1927, chapter 44 as amended, which, so far as pertinent, enacts:—
3. (1) Subject to the provisions of this Act and of the Customs Act, there shall be levied, collected and paid upon all goods enumerated, or referred to as not enumerated, in Schedule A to this Act, when such goods are imported into Canada or taken out of warehouse for consumption therein, the several rates of duties of Customs, if any, set opposite to each item respectively or charged on goods as not enumerated, in the column of the tariff applicable to the goods.
Provision having thus been made for the levying, collecting and paying certain rates of customs duty upon goods imported into Canada, the value for duty of such goods, whenever any duty ad valorem is imposed, is taken care of by the general rule set forth in subsection (1) of section 35 of the Customs Act. That provision has been in the Act for some years and appeared as R.S.C. 1906, chapter 48, section 40. In 1922, by chapter 18, section 2, subject to an immaterial change, what are now subsections (2) and (3) of section 35 appeared as one paragraph, while what is now subsection (4) appeared as an unnumbered paragraph. The 1922 amendment reads as follows:—
2. Section forty of the Customs Act, chapter forty-eight of the Revised Statutes, 1906, is amended by adding thereto the following subsection:—
(2) In the case of importations of goods the manufacture or produce of a foreign country, the currency of which is substantially depreciated, the value for duty shall not be less than the value that would be placed on similar goods manufactured or produced in