John Day, Applicant, and Deputy Commissioner of Taxation, Respondent

The applicant grew over 140,000 trees on a 64 hectare property. The applicant had purchased diesel fuel for use in the business. He applied to the respondent for a rebate of the duty on the fuel on the basis that he had used it for an eligible activity which he described in his application as “tractor use on his property being developed for essential oil production and minor grazing, the boiler used in processing harvested material". The Excise Act 1901 provided that a rebate of duty was payable to a person who purchased diesel fuel for use in primary production. ‘Primary production’, for this purpose, was defined as "(a) agriculture; (b) fishing operations or (c) forestry". The respondent decided that the applicant was ineligible for a rebate of the duty on the fuel used to fire the boiler. The tribunal emphasized that the applicant’s eligibility for the rebate of duty in respect of the fuel purchased for firing the boiler depended on whether he had purchased it for use in primary production that was ‘agriculture’. So the issue to be determined by the Tribunal was whether the distillation process conducted by the applicant in the distillation shed at the relevant time was agriculture as defined in the relevant statutory provisions. The legal validity of the applicant’s submission therefore turned on whether the ordinary meaning of the phrase ‘the gathering in of crops’, as it occurred within the context of the definition of ‘agriculture’ included the distillation process. The Tribunal found that the phrase ‘gathering in of crops’ meant the act of severing and collecting plant material from cultivated plants where they stood and did not include any milling, extractive or other process, such as the distillation process, that was applied to the plant material that has been collected. Therefore the Tribunal affirmed the respondent’s objection decision.