Case: Deputy Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276
Outcome: distinguished
The Commissioner sought to demonstrate, contrary to Lindsay's submissions, that the subItem 18(5) notion of process or treatment did not extend further to Lindsay's advantage, once comparison was made to the circumstances in Deputy Federal Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276 (Gray J), and on appeal in 86 ATC 4406 (Crockett King and Beach JJ). The Supreme Court of Victoria there held that a machine which weighed, priced and labelled trays of meat in plastic bags could not be viewed as manufacture , and hence that the weighing machine was not an aid to manufacture . However I am unable to discern sufficient analogy between the circumstances the subject of that latter authority and those circumstances here postulated by Lindsay. 55 Lindsay emphasised moreover that the dicta in Hamersley Iron ( ante ) occurred in the context of determining whether certain stacking equipment was used in a process or treatment for the purpose of bringing goods into a marketable or usable condition within at least subItem 18(5)(c), that is to say, in order to put the iron ore as mined into a blended and stored condition ready for shipping. SubItem 18(5) being said by Lindsay to be analogous to Item 14 of the schedule to the precursor exemption legislation to the STEC Act. Lindsay further contended that the foregoing dicta in Hamersley Iron occurred in the further context of determining whether there was at any material time a change in the form, nature or condition of the goods. In that respect, Lindsay asserted that goods cannot be maintained and changed at the same time. Lindsay submitted therefore that on the tests stated in Hamersley Iron to the extent I have recorded, where incidentally the exemption related in part to '... apparatus... for use in the mining industry in carrying out mining operations and in the treatment of the products of those operations', no change in form, nature or condition of the goods is required. The description treatment appears of course throughout each of the definitions of manufacture-related activity appearing in subItem 18(5). The foregoing was described by Lindsay as an established conclusion, fortified by the statutory language having implicitly incorporated the notion of 'keep[ing] the goods refrigerated', as postulated by Mr Cooper in his expert evidence. Lindsay submitted therefore that by prescribing a sales tax exemption for equipment used in applying a process or treatment for the purpose of keeping goods in a marketable or usable condition, the Legislature did not require that any change in form, nature or condition must necessarily occur. 56 That thesis was said by Lindsay to be supported by the example given in the STEC Act, by way of footnote to par (c) of the definition of manufacturer-related activity appearing in the context to subItem 18(5) which I have earlier extracted, and which reads '... applying a coating of grease to manufactured hand tools to prevent corrosion' . It was said by Lindsay, rightly in my opinion, that the application of a coating of grease to a hand tool would not bring about any change in the form, nature or condition of the hand tool, but rather would serve to keep the hand tool in the condition in which it would be appropriately marketed by the manufacturer.