Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation Pepsi Seven-Up Bottlers Australia Pty Ltd & Anor v Commissioner of Taxation [1995] FCA 897

CATCHWORDS SALES TAX - Exemptions and Classifications - whether bottles for soft drinks to be classified as "containers ... used in ... marketing ... take-away beverages ..." - meaning of "take-away beverages" discussed. EVIDENCE - Admissibility - meaning of ordinary English words - circumstances where evidence of usage or meaning of words may be given - whether common law rules affected by Evidence Act 1995. Sales Tax (Exemptions & Classifications) Act 1935, Third Schedule, Item 18.

Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645; applied Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126; applied Federal Commissioner of Taxation v ICI Australia Ltd (1971-2) 127 CLR 529; discussed Feltex Commercial Interiors Pty Ltd v Commissioner of Taxation (1990) 90 ATC 4925; discussed General Accident Fire and Life Assurance Corporation v Commissioner of Pay-Roll Tax [1982] 2 NSWLR 52; discussed Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222; applied Magna Stic Magnetic Signs Pty Ltd v Federal Commissioner of Taxation (1991) 91 ATC 4216; discussed Deputy Commissioner of Taxation v Precision Plastics Pty Ltd (Kitto J, unreported, 22 March 1956); discussed. PEPSI SEVEN-UP BOTTLERS PERTH PTY LTD v COMMISSIONER OF TAXATION AND PEPSI SEVEN-UP BOTTLERS AUSTRALIA PTY LTD & ANOR v COMMISSIONER OF TAXATION Nos NG 189 and 190 of 1994

HILL J SYDNEY 10 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) MATTER NO NG 189 OF 1994 BETWEEN: PEPSI SEVEN-UP BOTTLERS PERTH PTY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent MATTER NO NG 190 OF 1994 BETWEEN: PEPSI SEVEN-UP BOTTLERS AUSTRALIA PTY LIMITED First Applicant NEW GENERATION BEVERAGES PTY LIMITED Second Applicant AND: COMMISSIONER OF TAXATION Respondent CORAM: HILL J PLACE: SYDNEY DATED: 10 NOVEMBER 1995 MINUTES OF ORDER THE COURT DECLARES THAT: (1) The containers sold by the applicants to purchasers for resale through: (a) take-away outlets; and (b) further, other retail outlets; during the relevant period are not within Item 18 of Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) and are not taxable at the rate of ten percent of the sale value. THE COURT ORDERS THAT: (1) The application be dismissed. (2) The applicant pay the respondent's costs.