Cowell Electric Supply Co Ltd v Collector of Customs [1995] FCA 4

CATCHWORDS

CUSTOMS - rebate under s. 164(1)(aa) of the Customs Act 1901 in respect of diesel fuel purchased for use in primary production - construction of provision - nature of purpose involved in it - purchase of diesel for power generation in country areas involving some use in primary production and some of other kinds - whether facts fully found - whether entitlement shown to an apportionment - appeal from Administrative Appeals Tribunal. Customs Act 1901, s. 164 Collector of Customs v. Rottnest Island Authority (1994) 119 ALR 406 Collector of Customs v. Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 Australian National Railways Commission v. Collector of Customs, South Australia (1985) 8 FCR 264 Collector of Customs v. Cliffs Robe River Iron Associates (1985) 7 FCR 271 Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520 District Council of Coober Pedy v. Collector of Customs (1993) 42 FCR 127 Commissioner of Taxation v. Cooper (1991) 29 FCR 177 COWELL ELECTRIC SUPPLY COMPANY LIMITED v. COLLECTOR OF CUSTOMS NG 214 of 1994 Burchett, Hill and Carr JJ. Sydney 10 January 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 214 of 1994 ) GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COWELL ELECTRIC SUPPLY COMPANY LIMITED Applicant

AND: COLLECTOR OF CUSTOMS Respondent

CORAM: Burchett, Hill and Carr JJ. PLACE: Sydney DATE : 10 January 1995

ORDERS OF THE COURT

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal be set aside, and in lieu thereof it be determined that the applicant is entitled to a rebate in respect of an apportioned part of the diesel fuel the subject of the application to the Administrative Appeals Tribunal. 3. The matter be remitted to the Administrative Appeals Tribunal to determine the appropriate apportionment, unless the parties are able to reach agreement thereon. 4. The respondent pay the applicant's costs of and incidental to the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.