Ergon Energy Corporation Limited v The Commissioner of Taxation of the Commonwealth of Australia [2006] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Ergon Energy Corporation Limited v The Commissioner of Taxation of the Commonwealth of Australia [2006] FCAFC 125

CUSTOMS AND EXCISE – diesel fuel rebate – whether fuel used at residential premises – at hospitals, nursing homes and aged person homes – public utility under general statutory obligation to provide electricity to customers in north Queensland – provision of electricity to island communities in the Torres Strait – whether purchase of fuel "for use" by public utility provider "at" residential and other premises – whether the criteria in s 78A(1) (b), (c) and (d) of the Excise Act 1901 satisfied by the undisputed facts – whether a question of law sufficiently formulated – appeal against setting aside Tribunal decision dismissed Administrative Appeals Tribunal Act 1975 (Cth), s 44 Excise Act 1901 (Cth), s 78A(1) Customs Act 1901 (Cth), s 164(1) Electricity Act 1994 (Qld), s 49 Federal Court Rules, O 53 r 3(2) Mabo v Queensland (No 2) (1992) 175 CLR 1 referred to Re Warmun Community (Turkey Creek) Inc v Chief Executive Officer of Customs (2000) 58 ALD 797 referred to Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 followed Collector of Customs v Rottnest Island Authority (1994) 48 FCR 177 followed Cowell Electric Supply Company Ltd v Collector of Customs (1995) 54 FCR 1 distinguished Commissioner of Taxation v Ergon Energy Corporation Ltd [2005] FCA 1918 referred to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 followed Re Queensland Electricity Commission v Collector of Customs (1990) 13 AAR 119 referred to Coober Pedy v Collector of Customs (1993) 42 FCR 127 referred to Commissioner of Taxation v Roberts (1992) 37 FCR 246 referred to Commissioner of Taxation v Cooper (1991) 29 FCR 177 referred to Vetter v Lake Macquarie City Council (2001) 202 CLR 439 applied Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 referred to Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 referred to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 referred to