Case: Deputy Commissioner of Taxation v Pepsi-Cola Metropolitan Bottling Co Inc (1967) 10 FLR 101 
Outcome: considered
36(3), specifically Item 36(3)(d)(ii), was the subject of further consideration by the Supreme Court of New South Wales in Deputy Commissioner of Taxation v Pepsi-Cola Metropolitan Bottling Co Inc (1967) 10 FLR 101, when it was in the following terms: Fruit juice products, namely:- (a) Concentrates for the making of non-alcoholic beverages, being concentrates which consist of not less than 25% by volume of juices of Australian fruits; (b) Cordials for the making of non-alcoholic beverages, and preparations for use in the flavouring of foods, being cordials or preparations which consist of not less than 25% by volume of (i) juices of Australian fruits (ii) a mixture of concentrates and juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (iii) juices of Australian fruits and a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (c) Non-alcoholic beverages consisting wholly of juices of Australian fruits or vegetables (including herbage) (d) Non-alcoholic carbonated beverages containing not less than 5% by volume of : (i) juices of Australian fruits (ii) a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (iii) juices of Australian fruits and a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices;' (Emphasis added). I have referred at some length to the Pepsi-Cola case because of the reliance placed on it by counsel for the applicant for his submission, or the first alternative of it, that the Edenvale products consist of the requisite measures by volume of the juices of fruits at the point of supply notwithstanding the anterior fermentation and de-alcoholisation processes. For reasons I will come to, reliance on the Pepsi-Cola case for that submission, in my view, is flawed. Immediately before the commencement of the GST Act, Item 11 of the Table found expression in Item 13(4) of the Second Schedule to the E &amp; C Act 1992 : 'non-alcoholic carbonated beverages, if they consist wholly of juices of fruits or vegetables', and Item 12 of the Table found expression in Item 13(3) of the Second Schedule to the E &amp; C Act, although the bar for the volume requirement of juices of fruits or vegetables was set much lower: 'non-alcoholic non-carbonated beverages, if they consist of at least 25% by volume of juices of fruits or vegetables'. In both cases they were subject to 10% sales tax rather than being, as under the GST Act, tax free. The applicant relies on the decisions in Faulding and Pepsi-Cola in support of its position. The decision in Pepsi-Cola does not create any tension with such a conclusion because the item in question in that case used the word 'containing', not 'consisting', a distinction apparent to Macfarlan J in the extract from his judgment (at 106) reproduced at [51] above and the reason why, in that case, his Honour concluded that in using the word 'containing', rather than 'consisting', 'Parliament [was] only concerned to ensure that an Australian fruit juice in the prescribed quantity shall have been used in the carbonated beverage' (at 109). An additional impediment for the applicant in the case of the carbonated Edenvale product is that Item 11 of the Table requires that it must consist 'wholly' of juices of fruit and even in the applicant's case, it admitted that the product only consists of 97.3% by volume of juices of fruit. However, the applicant argues that the additional volume largely consists of rainwater added to the beverage as part of the reconstitution process and, accordingly, the rainwater should properly be regarded as part of the grape juice. Once an adjustment is made for the rainwater (and taken into account as being part of the juices of fruits, but see [96] below), the product consists of 99.1% by volume of juices of fruits. It is then suggested by the applicant that the de minimis rule should apply to the remainder.