UNO TECH PTY LTD v FC of T

Members:
BH Burns DP
BC Lock M
DJ Trowse M

Tribunal:
Administrative Appeals Tribunal

Decision date: 15 March 1994

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BH Burns (Deputy President), BC Lock and DJ Trowse (Members)

This is an application for review of a decision of the respondent, dated 11 September 1992, to disallow the applicant's objection against an assessment of sales tax issued by the respondent on 28 October 1991.

2. The evidence before the Tribunal comprised the documents filed pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (the ``T'' documents), together with exhibits tendered by the parties. The Tribunal also heard oral evidence from Mr Gambranis, a director of the applicant company, and Dr Steketee, a senior lecturer in subjects pertaining to the science of computers. Mr Schurgott of counsel appeared for the applicant and the respondent was represented by Ms MacDonald of counsel. At the behest of the applicant, this matter proceeded as a public hearing.

3. The parties provided to the Tribunal a statement of agreed facts (exhibit A1) and the Tribunal finds as fact the following which is contained therein:

``1. The Applicant is a company incorporated in South Australia and whose registered office is situate at 71 South Road Thebarton South Australia 5031.

2. Mr Peter O. Gambranis is a Director of the Applicant.

3. The Applicant has carried on business at all material times as an importer and wholesaler of electronic reference devices.

4. The applicant was registered as a wholesale merchant for the purposes of the Sales Tax Assessment Acts (Nos 1 to 10) by the Respondent on the 5th day of July 1988. (A copy of the Certificate of Registration No. 8 616 919 is contained in the Tribunal Documents at reference T4).

5. The Applicant is the sole Australian distributor for Franklin Electronic Publishers, Inc. [`Franklin'] a United States company which was formerly called Franklin Computer Corporation until the 5th day of March 1990.

6. The Applicant purchases electronic reference devices from Franklin.

7. One of the electronic reference devices purchased from Franklin is the Franklin Wordmaster QM-1015 which is also referred to as the `Collins Pocket Wordmaster QM-1015'.

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8. The Franklin Wordmaster QM-1015 is manufactured in China and imported into Australia by the Applicant.

9. Some wholesale sales of the Franklin Wordmaster QM-1015 have been made by the Applicant to major department stores in Adelaide including David Jones Limited, John Martin's Limited and Harris Scarfes and other stores such as Tandy Electronics and Burchell's a bookstore-stationer in Hobart.

10. The International ISBN Agency has accorded an ISBN number to the Franklin Wordmaster QM-1015. That number is ISBN 0-945731-50-7.

11. The Franklin Wordmaster QM-1015 can be described as an `Electronic Book'.

12. On the 6th day of May 1991 a Tariff Concession Order was made classifying devices including the Franklin Wordmaster QM-1015 under Schedule 3 to the Customs Tariff item `8543.80 other machines and apparatus' as `Books, electronic, preprogrammed, microprocessor based, classified by international standard book numbers'. (Copies of Schedule 3 of the Customs Tariff and the Gazettal of the Tariff Concession Order are to be found at T18 and T19 respectively of the Tribunal Documents).

13. The Applicant sold one (1) Franklin Wordmaster QM-1015 on the 26th day of September 1991. (A copy of the Invoice recording the sale is to be found at T22 of the Tribunal Documents).

14. The Respondent assessed the Applicant to Sales Tax pursuant to Section 10A of the Sales Tax Assessment Act (No. 6) 1930. (A copy of the Notice of Assessment is contained in the Tribunal Documents as T24).''

4. The Tribunal further finds as fact the following which was not in dispute:

The Franklin Wordmaster QM-1015 (``the Wordmaster'') is hand-held and electronic and contains a data base dedicated to one topic, in this instance a thesaurus, and allows the user to access the information through a keypad and liquid crystal display screen.

On 14 June 1988 the respondent received from the applicant, an application for Sales Tax Registration (T3/6-13). The application described the main goods that were to be sold as ``Electrical-Imported''. The respondent issued a Certificate of Registration on 5 July 1988 identifying the applicant as a ``Wholesaler of Electrical Devices'' (T4/13). The Sales Tax return subsequently lodged by the applicant described the goods it sold as ``Reference Computers'' (T5/14).

On 19 September 1989, the applicant requested the respondent to confirm that an electronic edition of the Holy Bible was exempt from sales tax (T6/16). The respondent replied that sales tax of 20% should apply (T7/18). On 22 August 1990, the applicant sent to the respondent a detailed submission arguing that its ``electronic books'' were eligible for sales tax exemption under sub-item 51(1) of the first Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (``the Act''), which provision exempts inter alia ``books'' (T8). On 27 September 1990, the respondent ruled that ``electronic books'' did not qualify for exemption because ``the ordinary or common meaning of book should apply'', ie ``a collection of sheets of paper or other substance, blank, written on or printed, especially such a collection fastened together and protected by covers'', and accordingly, ``electronic books'' as described by the applicant are taxable at the general rate of 20%. (T14/135).

In a letter dated 4 October 1991 (T21/173), the applicant requested a special assessment be issued in relation to the sale of one Wordmaster on 26 September 1991. This special assessment was issued on 28 October 1991 and stated that sales tax of 20% applied (T24/176). In a letter dated 23 December 1991 the applicant objected to the assessment (T25/178-179), also providing to the respondent a further submission in support of the objection (T26/180-184). The applicant was advised by the respondent on 11 September 1992 (T29/190-192) that the objection was disallowed. On 10 November 1992 the applicant lodged an application for review of the decision of 11 September 1992 with this Tribunal (T1/1).

5. The main issue to be determined by this Tribunal is whether the Wordmaster is a ``book'' for the purposes of sub-item 51(1) of

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the first Schedule of the Act and therefore exempt from sales tax.

6. Liability for sales tax as it relates to imported goods is set out in the Sales Tax Assessment Act (No 6) 1935 as follows:

``5(1) Where goods imported into Australia by a registered person, or by a person required to be registered, are sold by the importer of the goods to an unregistered person or to a registered person who has not quoted his certificate in respect of the purchase of the goods, sales tax shall be paid by the importer of the goods.

6 Notwithstanding anything contained in section 5, sales tax shall not be payable under this Act by the person specified in that section upon the sale value of goods the sale value of which is, by virtue of the Sales Tax (Exemptions and Classifications) Act 1935- 1973, exempt from sales tax under this Act.''

Imposition of the tax and various specified rates are contained in ss. 3 and 4 respectively of the Sales Tax Act (No 6) 1935.

Section 5(1) of the Act provides as follows:

``5(1) [Exemptions under specified Assessment Acts] Notwithstanding anything contained in any Sales Tax Assessment Act, sales tax shall not, subject to this section, be payable upon the sale value of any goods covered by any item or sub-item in the first column of the First Schedule, under any Act specified in the second column of that Schedule opposite that item or sub-item.''

Item 51(1) of the First Schedule to the Act exempts the following items from sales tax:

``ITEM 51(1) Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule)-

• (a) books of account; books of receipts, cheques, deposit slips, bank withdrawal forms, tickets, dockets, labels or order forms; books of blotting paper, books of blank sheets, or of sheets ruled or printed, for writing notes, letters, exercises, accounts or for record purposes, or for sketching, drawing, colouring or painting (not being children's books containing printed illustrations for copying or colouring or for copying and colouring); albums, books of samples, menus or calendars; booklets of printed matter conveying greetings or sympathy; diaries; other stationery in book form;
• (b) programmes, schedules, syllabuses, guides or souvenirs of entertainments, amusements, exhibitions, competitions or sporting events;
• (ba) books covered by sub-item (3) of item 3 in the Third Schedule;
• (c) catalogues or price-lists;
• (d) memoranda of association, articles of association, balance-sheets, statements of accounts or prospectuses of trading or other concerns carried on for the profit of individuals or associated reports;
• (e) advertising matter; or
• (f) books, pamphlets, leaflets, periodicals, magazines or printed music published or to be published for the purpose or as a means of advertising the business or the products of the publisher or of the person or persons for whom they are or are to be published.''

The item is found in Division IX of the First Schedule which Division is headed ``Books, Printed matter and paper''. Section 3(2) of the Act provides:

``The heading to any Schedule or to any Division in any Schedule shall not be read as affecting the interpretation of that Schedule or of any item in that Schedule.''

7. Mr Gambranis gave evidence which included a demonstration of the functions of the Wordmaster. Mr Gambranis explained that his role of director of the applicant company is to co-ordinate the importing of electronic books into Australia and their distribution. He explained that the Wordmaster contains a spelling list of words, a list of words taken from Collins dictionary, thesaurus entries and groups of synonyms. In terms of the background of the device, Mr Gambranis explained that the contents are drawn from a printed version of a thesaurus by the compilation of that printed information which is then translated into computer language and compressed onto a chip contained within the Wordmaster. The Wordmaster is battery operated.

The demonstration of the Wordmaster included that of the thesaurus function whereby the user enters a word by spelling it on the key pad, then presses an enter key, the Wordmaster indicates whether the word has been spelt

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correctly and then indicates whether there is a thesaurus entry for that particular word. By pressing a further key, the Wordmaster will then inform the user of the number of different lists of synonyms which exist for that word and the user can then scroll through the list or lists of synonyms which the user chooses. A spelling function or ``Phonetic spelling correction'' was also demonstrated. If a word is keyed in with incorrect spelling, the Wordmaster notifies the user of this and a list of alternatively spelt words or ``potential correctors'' becomes available. The Wordmaster uses each letter that was keyed in by the user to list various combinations of correctly spelt words. Mr Gambranis explained that this function involves an algorithm that essentially refers the user to a list of words related to the mis-spelt word which the user keyed in. If the word that the user keyed into the Wordmaster is phonetically close to the actual word the user desires, the first word which generally comes up on the screen of the Wordmaster is the correct spelling of the one which the user attempted to enter but did so incorrectly. He described the function as ``an algorithmic path to achieve a correct result by using those similar human or physical search techniques''. Mr Gambranis gave evidence as follows, at p. 26 of the transcript:

``... It's a complex index system, if you like,... The list is based upon, and is, the contents of, a Collins Thesaurus.... The contents are supplied by Collins Publishers with MJ Collins and Sons of the UK. In essence, referring to the printed form or the electronic form of thesaurus you are performing the same function. You are seeking the same information. You are using a device, an electronic book, in difference (sic) to a printed book.''

Mr Gambranis stated that this phonetic spelling function would be another reason for a person deciding to purchase the device. He further stated that the people who buy the Wordmaster are students and business people.

8. The Wordmaster also has a function called ``similars'' which Mr Gambranis described as ``an additional entry'' (at p. 33 of the transcript) to allow for homonyms. Upon entering a word via the key pad, if a homonym of the entered word exists, a question mark flashes on the screen of the Wordmaster to alert the user to the fact that a homonym exists in the list of words which is stored in the Wordmaster.

The Wordmaster also performs a function entitled ``Crossword Solver'' which is used to find words after some of the letters have been filled in. By entering the word as a combination of known letters and question marks where the letters are not known, the Wordmaster provides a list of words that fit that particular pattern. Mr Gambranis gave evidence as follows, at p. 34 of the transcript:

``Q. Mr Gambranis, to the extent of your knowledge of purchases of this device, is that function, the crossword solver function, in demand?

A. It's an attractive feature. We have a crossword solver as a separate title. It is a feature. I most certainly wouldn't call it a primary feature. I couldn't say that it doesn't interest people. We wouldn't have it there if it didn't interest people.''

9. The Wordmaster also has what are described on the packaging of the Wordmaster (see exhibit A7) as ``word games and other exciting features''. Mr Gambranis gave evidence in relation to this function as follows, at p. 29 of the transcript:

``Q. What do you describe those as, part of the electronic book?

A. Yes, part of the book. Much the same as you might have an addition to a normal printed book in the back of it, like pages or whatever. It (sic) not the primary reason that someone would go and buy one of these. They wouldn't go and buy one and say: I want a Thesaurus because I want to play the games. They would go and buy it because they want an electronic Thesaurus, and in most cases the primary reason for that is either they have some difficulty or an aversion in looking for pages. It is a time factor. This is fairly quick to look up once you get the hang of it, to look up a particular word and find the symbols for it. Electronic format is far simpler, it's quicker.''

The games include ``Hangman'', ``Flashcards'', ``Anagrams'', ``Spelling Bee'', and ``Deduction''. Hangman and Flashcards are word games where the user must try and guess what a word is either as the user selects letters which may or may not be in the word, or as the Wordmaster provides random letters of the word one at a time. The games can be played at different levels of difficulty. ``Anagram''

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involves using the letters of a word to create other smaller words.

The Wordmaster also contains a list of ``TOEFL'' words which are words used for pre-university entrance exams.

10. Mr Gambranis gave further evidence as follows, at p. 42 of the transcript:

``Q. What is the difference between this device and the computer, if any?

...

A. It is not a computer,... you can't alter the contents of this device, if you want to call it anything. A computer allows you to put in software and manipulate various bits of information.

Q. Allows you to create?

A. Create more, yes. That would be a better way of putting it.

Q. In accordance with the software?

A.... It is a fixed memory. It can't be altered. It is like ripping a page out of something. So I would have to show that I couldn't consider it on that basis a computer.... The mechanics of the chips and the electronic circuitry replace the tedium,... and the slowness of going through and looking firstly at an index and then looking up a particular section and then looking through the particular section to find what you are actually looking for.... When you have got an electronic devise (sic) you have a slightly wider option there to compliment the listing that you have got - the title that you have got in front of you....''

11. The Tribunal found Mr Gambranis to be extremely helpful in assisting the Tribunal to understand the operation and functions of the Wordmaster, and accepts the evidence he gave to that effect.

12. The Tribunal also heard evidence from Dr Steketee, head of the School of Computer and Information Science at the University of South Australia. In regard to the Wordmaster, Dr Steketee described it as follows, at pp. 11-12 of the transcript:

``A. Physical appearance, just looking at the front, it has a keyboard, it has a number of ancillary switches which - perhaps I wouldn't describe as a keyboard in the sense that the keyboard itself is largely letters and punctuation marks. It also has what looks like - what I note to be visual - a display unit, using liquid crystal display technology.

Q. The keyboard, is there anything notable about the keyboard?

A. Yes, it is all alphabetic but there are no numeric keys on there.

Q. Is that unusual?

A. Well, unusual, yes, I suppose. Most devices of this kind one might expect to see some numeric keys.

Q. When you say `a device of this kind' how would you describe this device?

A. Well, it is... a little box, it has a keyboard on the front, it has got a display unit, there is originally some assumption that it has got some electronics in the back if it were to be opened up.

...

Q. If I was to describe it as a digital electronic device, would that be an apt description?

A. Certainly.

...

Q. Can it be programmed?

A. No, I believe it cannot.

Q. What do you understand me to mean when I say that the device can be programmed?

A.... I am quite confident this device contains a computer inside it. As I have said in my affidavit, computers work by executing instructions in a series, one by one. The instructions are stored in a memory that is part of the computer. There is then some control circuitry which fetches these instructions one at a time which decodes each instruction to determine what it means and then executes it.... programming a computer is using,... one of a number of different tools which will cause instructions to be stored in the memory of the computer so that can be executed.

Q. You are confident that this device is not programmable?

A. Certainly the device, as I see it here, is clearly not programmable. There are no functions that allow me to write a

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programme, for example, to add... numbers together.

Q. Simply inputting to this device by way of the entry key, is that programming it?

A. No, that is simply inputting data of some sort. I would not classify that as programming.

Q. There is a distinction between inputting data and programming the device?

A. Yes.

Q. What is that distinction?

A.... data is information that is used by the computer to perform a computation in the most general sense. It need not be numeric. It can be alphabetical data as well. For example, if I had a list of words that I wanted to be sorted in alphabetical order, then it would be possible to input that list of words into the computer, one by one, by keyboard and then give the computer an instruction,... to sort that list in alphabetical order.''

At p. 13 Dr Steketee gave evidence as follows:

``Q. You said that the device would have a computer inside it, is this device a computer?

A. Not in my opinion.''

At p. 14 of the transcript:

``... it is my view that this device is not in itself a computer by either of [the definitions contained in exhibit A14]... It is not a computer by the first definition because of the way that it functions is not to allow me to say please do some computation but it contains a computer by that definition... It is not a computer by the second definition because it does not satisfy the ability, in particular to execute user-written or user- designated programs....

Q. So this device... contains a computer but it is not a computer?

A. That is right.

Q. What sort of componentry would you expect to find inside a computer?

A.... I would... put it into four categories... CPU which stands for central processing unit, memory, input-output control circuitry and then input-output devices.... it is actually the CPU that is responsible for... fetching instructions, taking instructions from the memory one by one, decoding them and then doing what those instructions represent. The memory is used for two purposes.... to hold programme instructions of the kind that I have just said and it is also used to hold data that can be manipulated. The input-output control circuitry is there to allow the computer to have some communication with the outside world....''

13. After being shown the Wordmaster with the back removed (see exhibit A10), Dr Steketee stated that the componentry consisted of a printed circuit board, with the most important part of the componentry being three integrated circuits or micro chips. These integrated circuits between them are responsible for the functions of the CPU and memory and input-output control. He explained that the Wordmaster is battery operated and that the input-output devices are the screen and the keyboard.

14. Dr Steketee stated that there are a number of devices which use computer technology but which are not computers, such as washing machines, microwaves.

15. In cross-examination Dr Steketee gave evidence as follows, at pp. 18-19 of the transcript:

``What part of [the Wordmaster]... or what functions of that device would you say are inconsistent with calling the whole thing a computer?

A. I don't think any parts of the device are inconsistent. It's more a matter of what you can't do with it that are inconsistent with calling it a computer.

Q. So you are saying that on the basis that it is not programmable by the user, you would not call it a computer?

A. That's right.''

Dr Steketee gave further evidence, at p. 24 of the transcript, as follows:

``... PCs have the capability of executing a variety of user-designated programs... So the distinction I'm making there is between something that's dedicated to one function that intrinsically by its construction is dedicated to one function, and by something that is essentially general purpose, because I can buy programs from a variety of suppliers and use them.''

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At p.27 Dr Steketee further explained:

``... most fundamentally... there is nowhere that I can do the equivalent of putting in a floppy disc to [the Wordmaster] and say: not thesaurus, spreadsheet.... in order for it to be general purpose... you will really need numeric keys.... if it was going to be general purpose, you would want a larger screen for practical purposes.''

At pp. 29-30:

``... I would tend to say that there is an argument for saying playing one of the word games might be a different programme from the thesaurus function... all I can say is that - I think that the generally accepted definition in the community of a computer as well as in the industry says that having a restricted set of functions like that with no possibility of changing them is what stops it from being a computer in the accepted sense.

Q. So it is described as what?...

A. Well, it's called a thesaurus, I believe.

Q. Yes, but the essential characteristics of it are such that you cannot describe it as a computer, so what do you describe it as, just a device?

A. I would probably call it an electronic thesaurus, if I had one.

...

... It's fair to say that this device has a computer in it which undoubtedly has the ability to do some arithmetic operations and some logic operations. What this device, as it is presented to us, doesn't do, is it doesn't give us any direct access to those; those functions will be used no doubt as part of the operation of the programme, but hidden deep inside.''

16. Dr Steketee further explained the process whereby the words from the Collins Dictionary arrive in the Wordmaster. He stated that it was his opinion that Collins would have furnished a copy disc or tape to the manufacturer of the Wordmaster. The manufacturer would then have the words encoded in read-only-memory which would then be mass produced with the read-only-memory forming one of the integrated circuit chips, or a part thereof, in the Wordmaster.

In cross-examination he gave evidence as follows, at pp. 19-20:

``Q. You were also asked the question about how do the words get from Collins to the device and my recollection is that you replied that Collins would have provided a floppy disk or a tape. Now, I presume that that floppy disk or tape would contain all the information that then would go into the relevant chip or chips?

A. Well, it would probably contain more information. It would typically be tape from the typesetter I should think.

Q.... is there any process that involved a printed book at Collins' end... did somebody take it from the printed word and turn it into electronic information?

A. Collins will certainly have its dictionary... in word processed or computer readable form, in electronic form on tape or disk... and that will be the real master for Collins, not the printed book.

...

Q. Between the process of Collins providing that information to Franklins and manufacturers here, would Franklins then have to do something extra to put into that device?

A. Yes. Well, I'm speculating that Collins may have provided the entire text of its dictionary words, pronunciations, meanings and all, and either Collins themselves in fact or a manufacturer's device would have then had to strip out all that extraneous information.

...

Q.... So some work is done at the one end or the other to actually change the electronic information which would produce the printed book... to put it in a format... suitable for this device?

A. Yes.''

17. The Tribunal accepts the evidence of Dr Steketee as to the method by which the data is entered into the Wordmaster, as well as his evidence as to the make-up and componentry of the Wordmaster. Further, the Tribunal accepts his evidence that the Wordmaster is not a ``computer'' within the everyday meaning of the word. The Tribunal found Dr Steketee's

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evidence most helpful in determining the nature and function of the Wordmaster. The main issue for determination is, of course, whether the Wordmaster is a ``book'' for the purposes of sub-item 51(1) of the First Schedule of the Act.

18. Both counsel made extensive submissions of the principles to be applied when construing an exemption under tax legislation.

Counsel for the applicant submitted that an exemption contained in a taxing statute should not be construed narrowly.

19. In
Otto Australia Pty Ltd v FC of T 90 ATC 4604 where Justice Lockhart stated, at p. 4608:

``I agree that exemptions of the kind presently before the Court should not be construed narrowly, a principle which I always follow when construing exemptions to taxing statutes. However, it is only in cases of ambiguity that the application of those principles becomes relevant because the primary task of the Court is to construe the language of the statute and this is generally done according to the plain and ordinary meaning of the words used by the legislature.''

Counsel for the applicant relied on this authority to submit that because the word ``book'' has ambiguities, it should be given a wide interpretation. Counsel further relied upon a letter from the Australian Book Publishers Association (``ABPA'') to the ATO where the writer stated as follows (see exhibit R3):

``... the Association requested several of its members to consider the matter of what was an electronic book. Unfortunately, they could not arrive at a consensus.

One of the problems is that electronic publishing is in its developmental stages at present and thus continuously evolving. The thesaurus which is the subject of the present case is but one example of electronic books currently under development.

As we discussed, perhaps the electronic book is more like a computer software program rather than a computer per se....''

It was the applicant's case that this letter was further support for the proposition that the word ``book'' is ambiguous. Although the Tribunal accepts that the dictionary definitions of the word ``book'' show that there is some ambiguity in its meaning, the Tribunal does not consider that the letter from the ABPA is evidence of anything, other than that the meaning of the phrase ``electronic book'' is somewhat uncertain.

20. Counsel for the respondent submitted that only if a tax statute is truly ambiguous should it be interpreted in favour of the taxpayer and, in any event, there is no true ambiguity in sub- item 51(1) of the First Schedule to the Act. Alternatively, counsel for the respondent relied on the decision of the Tribunal in Case 37/93,
93 ATC 425 to submit that if there does exist sufficient ambiguity, the Tribunal should not ``legislate'', that is, a change of meaning to a word should not be readily assumed.

21. In the light of the authority which is binding on this Tribunal, the Tribunal finds that the exemption contained in sub-item 51(1) of the First Schedule to the Act should not be construed narrowly, provided that it can be said that there exists an ambiguity (see also
Penrith Rugby League Club Ltd v Commr of Land Tax (NSW) 83 ATC 4709 and
FC of T v Top of the Cross Pty Ltd and Travel Holdings (Aust) Pty Ltd 81 ATC 4563). However, although the Tribunal accepts that the exemption should not be construed narrowly, that is not to say that the Tribunal can construe a word in a statute such that that construction would change the meaning of the word as that is the task of the legislature.

22. The second submission which counsel for the applicant made was that where a decision- maker is dealing with an exemption item, the legislation should be read in favour of the taxpayer. In making this submission, counsel relied on Top of the Cross (supra) as well as
Jetmasters Fireplaces Pty Limited v FC of T 89 ATC 4464. Counsel further relied on the judgment of the Full Court of the Federal Court in
Diethelm Manufacturing Pty Ltd v FC of T 93 ATC 4703 at p. 4713:

``The creation of statutory classes of goods or services which attract special rates of tax or rebates or exemptions from tax is a common device of revenue laws. Generalisation about the construction of such statutory classifications is to be undertaken with caution. Decisions on one such classification may have only limited application to another, albeit they share similar features. While purposive construction is desirable, the purpose to be

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served by a particular exemption or rebate may be beyond discovery.''

23. In light of the Federal Court authorities on this point, the Tribunal accepts the applicant's submissions.

24. Counsel for the applicant also submitted that the authorities supported the proposition that sales tax legislation is to be interpreted in the light of the realities of trade and commerce and by having regard to technological change, Top of the Cross (supra),
FC of T v Kentucky Fried Chicken Pty Limited & Anor 88 ATC 4363. At pp. 4375-4376 of Kentucky Fried Chicken (supra) of the judgment, the court stated:

``This is a contention that seems to ignore changes which have come about in, among other things, the materials out of which goods which can be described as household drapery and soft furnishings are made. No doubt in decades now in the past the articles listed in the item would have been made almost always of some form of textile material. Many are still almost always made of some such material, for example, bed sheets. However one item at least in the list expressly acknowledges modernity, `plastic eyelet tape for use as part of plastic shower curtains'. Despite the express absence of any textile material, these articles are regarded as some form of household drapery or soft furnishings. Despite all the dictionary definitions that have been produced I find it difficult to imagine that paper refresher towels and paper serviettes cannot properly be regarded as falling within the `towels, face cloths and face washers' and `table napkins' specified in the item. Other listed particular items are `chair back covers', `laundry bags' and `meat bags'. I would have thought that although these items may now often be made of textile material, they are also often made of other material, and I can see no reason in purpose or policy to justify the restricted meaning which the Commissioner contends for. The effect of the general opening words must be qualified, as in the case of the plastic eyelet tape, by the nature of the specified articles and, as regards the material of which they are made, by the changing practices in this country as to the nature of that material.''

That is, it was the applicant's case that the term ``book'' as used in sub-item 51(1) of the First Schedule of the Act, in the light of technological change, must include electronic books. Accordingly, the applicant submitted that the Wordmaster, which has been described as an ``electronic book'' under Schedule 3 to the Customs Tariff Item ``8543.80 other machines and apparatus'' as ``books, electronic, preprogrammed, microprocessor based, classified by international standard book numbers'' (T18 and T19), is exempt from sales tax because it is a ``book'' within the meaning of sub-item 51(1) of the First Schedule to the Act.

25. Although the respondent accepted that the Wordmaster can be referred to as an ``electronic book'', it was the respondent's case that this does not determine whether or not the Wordmaster is a ``book'' within the meaning of sub-item 51(1) of the First Schedule to the Act.

26. Although the Tribunal accepts the proposition that the word ``book'' must be interpreted in light of technological change, the Tribunal is of the view that this does not of itself support a finding that the meaning to be attributed to the word ``book'' as used in the Act includes ``electronic book''.

27. Counsel for the applicant submitted that although the context of sub-item 51(1) of the Act is printing, Division IX of the Act includes a number of items which are not printed and accordingly such items which are not printed can fall within the ambit of sub-item 51(1) of the Act. For example, excluded from the exemption of sub-item 51(1) of the Act are ``books of blotting paper'' (item 51(1)(a)) and counsel for the applicant argued that although blotting paper did not involve printing, it must have been considered by the legislators to be included as a ``book'' and thus the need for exclusion.

28. The respondent placed some reliance on the fact that because all of the items in sub-item 51(1) of the First Schedule to the Act relate to printed matter, the word ``book'' is to be interpreted in this context (Pearce and Geddes Statutory Interpretation in Australia 3rd edition, at pp. 67-68). In making this submission, counsel for the respondent also relied on the decision of the court in
DC of T (NSW) v Zest Manufacturing Co Pty Ltd (1949) 79 CLR 166 where, at pp. 175-176, the court stated:

``... we must pay regard to the contents of the paragraph in which the item occurs.

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ATC 2026

Paragraph 6 is headed `Goods (and parts therefor) for use in the maintenance of livestock.' This heading is innocuous. But the paragraph refers specifically to horses, cattle, sheep and pigs. It includes amongst the items:- (7) Preparations for use in the prevention, cure or eradication of diseases or pests in livestock; (8) Rock salt and licks for livestock; (12) Tar brands, fire brands, tattoo brands, ear pliers, ear tags and ear markers, for marking or branding livestock. It was not suggested that the goods described in the paragraph, particularly those described in items (7), (8) and (12), would be used in the maintenance of the relevant fish. Then there is item (13), perhaps an unlucky one for the fish, which includes in goods for use in the maintenance of livestock veterinary instruments, appliances and materials of a kind ordinarily used by veterinary surgeons. Veterinary surgeons would not, I should think, ordinarily include fish amongst their patients. The context of the paragraph brands, I think, the livestock intended to benefit. Fish have a natural aversion to being caught. In the present case it is desired to catch the fish in the network of exemptions, but in my opinion the attempt fails. The paragraph as a whole and its component parts is appropriate only to animals which inhabit the land and quite inappropriate to animals which inhabit the water.''

Further, it was the case for the respondent that other items in Division IX of the First Schedule of the Act are all either printed, published or paper and accordingly that an electronic device is entirely contrary to the context of the legislation; see
John Fairfax & Sons Ltd v FC of T; Mirror Newspapers Ltd v FC of T 88 ATC 5033, at p. 5034:

``Except that the items in Div. IX are mostly on paper or are connected in some way with printing and publishing, it is difficult to see a common genus amongst them.''

The respondent further relied upon the fact that when customs gave the Wordmaster a tariff concession order, it did not give it to it under the printed books section which deals with paper and printed work, but gave it a new area under ``electronic devices''.

29. It was further the applicant's case that, because the exemption for books is about the relief from taxing knowledge and information, this provided further support for the Wordmaster falling within the ambit of that exemption.

In support of the submission, counsel for the applicant also referred to exhibit A5, a book produced by the National Book Council of Australia, which states at p. 1:

``Apart from a brief period in 1930-2, when a duty-like tax was imposed on books until public outcry forced its removal, books had never been subject to duties or taxes in Australia. It had always been accepted that the printed word was a primary means of transmitting knowledge and information and, as such, should be free from all imposts.''

It was the applicant's submission that this policy should equally apply to the electronic manifestation of the printed word because, by way of an up-to-date technological form of a book, it also conveys knowledge and information. That is, the Wordmaster is an electronic manifestation of the Collins Thesaurus which allows the user to access the words more rapidly and more efficiently than a conventional book.

30. In conclusion, it was the applicant's case that the Wordmaster performs the functions of a book and should fall within the policy which is expressed in sub-item 51(1) to exempt from taxation the conveyance of knowledge and information.

31. In light of the principles of interpretation which the Tribunal has found applicable to the circumstances of this case, it must now be considered whether or not the Wordmaster is a ``book'' within the meaning of that word as used in sub-item 51(1) of the First Schedule of the Act. The first step in this process is to determine what a ``book'', as used in the relevant legislative context, is.

32. The applicant's case was that the appropriate meaning is the ordinary meaning of the word which is to be gleaned from the various dictionary definitions of that word. Counsel for the applicant referred to the definition contained in the Australian Pocket Oxford Dictionary (2nd edition, 1984, edited by George W. Turner) (see exhibit A12) which defines the word ``book''as follows:

``form in which a literary work is made available for reading, now usu. a number of printed leaves fastened hinge-wise and enclosed in cover, literary work such as fills

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ATC 2027

or might fill one or more of such books (e.g. treatise, long poem, novel, set of poems or stories, biography, dictionary;...''

It was the applicant's case that this definition leaves scope for the incorporation of other manifestations of a book besides ``a number of printed leaves fastened hinge-wise''.

Counsel for the applicant also referred the Tribunal to the definition of a ``book'' contained in Volume 11 of the American legal dictionary ``Corpus Juris Secundum'' (see exhibit A4):

``The term is derived from the Saxon word `boc' meaning a beech tree, it being supposed that either the bark of the beech, or, what is more probable, thin polished plates of the wood of that tree, were used for writing. The word has its ambiguities, and may have different meanings according to the connection in which it is used; for it may refer to the subject matter as literary composition; or merely to form, as a number of leaves of paper bound together; or to a written instrument or document; or to a particular subdivision of a literary composition; or to the words of an opera, etc., conveying the idea of thought or conceptions clothed in language, or in musical characters, written, printed, or published; or it may have reference to writings, as distinguished from pictures, paintings, music, motion picture films, and the like; also it may refer only to the physical article.

In its popular sense a book is understood to be a volume, bound or unbound, written or printed. In a particular connection, it has been defined as meaning a literary composition; an assembly or concourse of ideas expressed in words, as distinguished from the physical object which can be held in one's hand; a printed literary composition; a printed or written composition; any composition, large or small, which includes results of successive mental processes, rationally combined, whether it fills a great volume or is contained in a single small sheet; or even when it comprises more than one volume.

In particular connections, or under special circumstances, the word has been held to include a collection of paper leaves, sewed or bound, used for any kind of writing, a collection of sheets bound together containing manuscript entries or intended to contain such entries, an account book, a roll or manuscript, a set of blanks for a license application, a sheet of music, collected sheets containing in orderly and connected fashion the record of the intellectual and literary work of the author, photostatic records before they are bound, and several important papers prepared to the progress of a cause, although entirely written and not all in book form; but not to include a bank deposit book, a label, a manuscript which the author has not designed for publication, or which is still incomplete, or furniture.''

33. Counsel for the respondent submitted that the starting point for the determination of the meaning of the word ``book'' is as defined in the Shorter Oxford and Macquarie Dictionaries. The Shorter Oxford Dictionary defines a ``book'' as follows:

``... A collection of sheets of paper or other substance, blank..., written, or printed, fastened together so as to form a material whole; esp. such a collection fastened together at the back, and protected by covers;...''

The Macquarie Dictionary defines a ``book'' as:

``a written or printed work of some length, as a treatise or other literary composition, esp. on consecutive sheets fastened or bound together....''

34. It was further the respondent's submission, and the Tribunal so finds, that the word ``Books'' in sub-item 51(1) of Schedule 1 of the Act is to be used in its ordinary common everyday meaning or popular usage (see Diethelm Manufacturing Pty Ltd (supra)). That is, because there exists no technical meaning of the word ``book'', as well as looking to dictionary definitions, the Tribunal should use its own commonsense and experience of the world and local knowledge to determine whether the meaning of the word `book' is such that it includes the Wordmaster. Further, because the word is in familiar, common and general use in the English language, the Tribunal should avoid trying to define the word or avoid subjecting it to intensive analysis and should interpret the word in accordance with customary usage (see Case 10/93,
93 ATC 152 at pp. 159-160: Pearce and Geddes (supra)).

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ATC 2028

35. The respondent also submitted that the word ``book'' is to be given its current meaning (see Pearce and Geddes (supra)) and that the current meaning of the word ``book'' does not include a computer nor an electronic device. The respondent's case was that the letter from the ABPA (exhibit R3) is evidence of the fact that there is no common, popular, or ordinary understanding of the word ``book'' which would include a device such as the Wordmaster because the technology is far too new.

36. It was the applicant's case that the question of whether the Wordmaster is a book is a question of fact guided by common knowledge (see
Rotary Offset Press Pty Ltd v DFC of T 72 ATC 4212). Further, the test is an objective one and ascertains the essential character of the goods in question. In
ACP Publishing Pty Limited v FC of T 93 ATC 4773, a case concerning the issue of whether sales tax was payable on a particular publication, Hill J at p. 4778 stated:

``What is necessary is to determine, objectively, the essential character of the publication, to determine what the publication is designed to achieve; what it does.''

Relying on this authority, it was the applicant's case that the Wordmaster functions like a book and accordingly is a book. That is, counsel for the applicant submitted that the substance of a book is the ability to read it and the principal character of a book is the ability to access and to read the information which is stored in it and that the Wordmaster does so allow the user to access the information which is stored in it.

37. Counsel for the applicant also referred the Tribunal to a letter from Franklin Electronic Publishers (see exhibit A15) which, in response to questions asked by Mr Gambranis, director of the applicant company, stated as follows:

``5. The text of the Collins thesaurus is compressed into computer code that is printed onto a read-only memory chip that is embedded on a circuit board in the Wordmaster case. The Wordmaster then serves as an ordinary book by allowing a person to read all of the thesaurus entries.''

Counsel for the applicant relied upon the fact that the material which is contained in the Wordmaster is the same as that contained in the Collins Thesaurus as evidence of the submission that the Wordmaster is a book, albeit a different manifestation of a book.

38. In
Re Tomline's Will Trusts, Pretyman v Pretyman (1931) 1 Ch 521 at p. 528, the court stated as follows:

``In the present case I have come to the conclusion that these three volumes are books. The factors leading me to that conclusion are these: The volumes are in book form; to the outward eye they look like books, and in the ordinary course they can be, and are, handled like books. Next I observe that they can be used like books, in the sense that, as one turns over the sheets, one can, if able to decipher the handwriting, read the various letters as a collection of letters bound up in books. I observe further that they are not detachable letters in the ordinary sense, but have been so inserted in the sheets that they are in substance permanent parts of the volumes, unless, indeed, they should be cut out or removed by some forcible effort.''

Counsel for the applicant was of the view that although the Wordmaster did not satisfy the first of the criteria quoted above, so long as it has the functionality of a book it may be classified so. That is, counsel for the applicant submitted that because the Wordmaster is capable of being handled like a book in that it is portable, and can be put in a bookshelf, bag or back pocket, it is a book. Further, it was the applicant's case that the Wordmaster can be used like a book, in that the sheets of the Wordmaster can be turned, or scrolled up and down, by way of pressing the arrows on the key pad and, like those of a book, the pages of the Wordmaster are not detachable. Finally, the fact that the Wordmaster allows the user to store words is similar to the process whereby a user would write words in a conventional book.

39. In relation to the games function of the Wordmaster, it was the applicant's case that this function is similar to the example of a conventional book with crosswords in the back of it.

40. Counsel for the respondent was of the view that function is not the test of what is a book. In any event, it was the case for the respondent that the Wordmaster would fail the functionality test because it has a much wider range of functions than a conventional book. That is, the functions of the Wordmaster - thesaurus, cross-word solver, phonetic spelling,

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ATC 2029

word games, limited input of user's words - precluded it from being a book because those functions cannot be performed by conventional books.

41. A further decision which discusses the definition of a book is
Casley-Smith and Others v FS Evans & Sons Pty Ltd and District Council of Stirling (No. 4) (1988) 49 SASR 339 where at p. 343 Olsson J, for the purposes of the Evidence Act, 1929, stated:

``The classic relevant dictionary definition is that a book is `a collection of sheets of paper or other substance, blank, written or printed, fastened together so as to form a material whole'. It is said, in the Oxford Dictionary, to extend to a literary composition long enough to make one volume, as distinct from what is termed a mere tract, pamphlet or essay. By way of contrast The Macquarie Dictionary, inter alia, defines `book' as a `written or printed work of some length, as a treatise or other literary composition esp on consecutive sheets fastened or bound together'.

It is immediately apparent that the following concepts emerge:

• (a) There must be a collection of sheets or pages, normally containing written or printed material.
• (b) These pages must contain a work or a collection of materials of some length or substance - as contrasted with being a mere single tract or pamphlet.
• (c) The pages must not be a mere loose leaf collection, but must be fastened or bound together in some reasonably substantial manner, so as to constitute a composite whole.

In general, these concepts seem to be reflected in such relevant authority as exists on the topic of what constitutes a `book'.''

Counsel for the applicant submitted that the decision in that case is narrow in its application in that it concerned the very fine context of the Evidence Act, which must be interpreted strictly and narrowly and further that the decision did not concern a commercial context. It was the applicant's case that arguably the Wordmaster satisfied the first criteria because inside of it there exists a manifestation of sheets or pages, even though they are not bound together in a conventional form. Further, the Wordmaster contains a work or a collection of materials of some length or substance, being the Collins Thesaurus.

42. In conclusion, the applicant submitted that a ``book'' is something that can be accessed in order to read the information stored therein, and is something which contains a collection of materials of a literary composition or some other type of work, which is given expression to in written or printed form, and that can be read by a person and which has some permanent existence.

43. Counsel for the respondent relied on the decision in
Re Professional Teaching Publications and Collector of Customs (1991) 25 ALD 149 at p. 157 to submit that the test of how to determine whether or not something is a book, is to look first at the dictionary definition of the word, and then look at the object's physical appearance, presentation and contents (see also Re Tomline's Will Trusts (supra)).

It was the case for the respondent that the Wordmaster cannot be classified as a book because its physical appearance is such that it looks nothing like a book. Further, counsel for the respondent submitted that the contents of the Wordmaster - a visual display unit, a keyboard, several integrated circuits including a central processor, a memory, programs and associated circuitry - are such that it cannot be classified as a book. The respondent submitted that the ordinary person would not think that these contents had anything to do with the contents of a book. Further, because the Wordmaster requires significant training or time spent reading the user manual before it can be successfully operated, it is not like a book.

44. Counsel for the respondent, relying on the decision in
Wilson & Anor v Commr of Stamp Duties (NSW) 86 ATC 4631, submitted that the fact that the Wordmaster uses algorithms to compress the information received from Collins and put it into the Wordmaster, makes it different from a book version containing exactly the same information and that the Tribunal should not just look to the end result of what information is stored in the Wordmaster.

It was further the respondent's case that the Wordmaster is not a book because, when the Wordmaster is turned off, the words which were on the screen no longer exist.

45. The ``Wordmaster'' (which we will refer to from hereon-in in neutral terms as ``the

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ATC 2030

item'') is liable to sales tax pursuant to s. 5 of the Sales Tax Assessment Act (No 6) 1935 and s. 4(d) of the Sales Tax Act (No 6) 1935, unless the item is exempt under the Sales Tax (Exemptions and Classifications) Act 1935 (``the Act''). First Schedule items are exempt from sales tax imposed by certain Sales Tax Acts, pursuant to s. 5 of the Act. Books are included as exempt items in Division IX of Schedule 1. We again set out sub-item 51(1) of Division IX which reads as follows:

``DIVISION IX - Books, Printed matter and paper

51.(1) Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule)-

• (a) books of account; books of receipts, cheques, deposit slips, bank withdrawal forms, tickets, dockets, labels or order forms; books of blotting paper, books of blank sheets, or of sheets ruled or printed, for writing notes, letters, exercises, accounts or for record purposes, or for sketching, drawing, colouring or painting (not being children's books containing printed illustrations for copying or colouring or for copying and colouring); albums, books of samples, menus or calendars; booklets of printed matter conveying greetings or sympathy; diaries; other stationery in book form;
• (b) programmes, schedules, syllabuses, guides or souvenirs of entertainments, amusements, exhibitions, competitions or sporting events;
• (c) catalogues or price-lists;
• (d) memoranda of association, articles of association, balance-sheets, statements of accounts or prospectuses of trading or other concerns carried on for the profit of individuals or associated reports;
• (e) advertising matter; or
• (f) books, pamphlets, leaflets, periodicals, magazines or printed music published or to be published for the purpose or as a means of advertising the business or the products of the publisher or of the person or persons for whom they are or are to be published.''

46. The Tribunal now turns to consider the question as to whether the item is a ``book'' within the meaning of that word in sub-item 51(1).

``Book'' is not defined in the Act and accordingly, needs to be defined by this Tribunal.

The First Schedule consists of fifteen divisions each devoted to a number of items under certain categories. These categories cover such essential things as agricultural and mining machinery; water supply and sewerage equipment; foodstuffs; medicines; fuel; power; light; building materials; scientific, educational and religious goods and works of art.

Division IX is entitled ``Books, Printed matter and paper''. The Tribunal would point out that in reaching its decision in this matter, it has at all times been mindful of the provisions of sub-s. 3(2) of the Act which reads as follows:

``3.(2) The heading to any Schedule or to any Division in any Schedule shall not be read as affecting the interpretation of that Schedule or of any item in that Schedule.''

47. The applicant submits that the item in question is a ``book'' within the meaning of the word ``Books'' which is the first word appearing in sub-item 51(1).

The context in which the word ``Books'' first appears in sub-item 51(1) is one of several words which read ``Books, pamphlets, leaflets, periodicals, magazines and printed music'' which is then followed by certain exclusions which are listed in paragraphs (a), (b), (c), (d), (e) and (f). Paragraph (a) includes a number of references to ``books''. These books are in the main, if not exclusively, of a commercial or business nature and include stationery in book form.

The opening words of sub-item 51(1) namely ``Books, pamphlets, leaflets, periodicals, magazines and printed music'' are to be found again in the opening words of para (f) of sub- item 51(1) but are followed on this occasion by the following words namely, ``published or to be published for the purpose or as a means of advertising the business or the products of the publisher or of the person or persons for whom they are or are to be published''. Books which fall into this category are not exempt from sales tax. This category like the others contained in the paragraphs referred to above, has a commercial or business flavour to it and is not exempt from sales tax.

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ATC 2031

The opening words of sub-item (2) of item 51 are in very similar terms as in sub-item (1), namely ``Books, pamphlets, leaflets, periodicals or magazines issued or to be issued by or on behalf of an organisation which is not carried on for the profit of individuals for the purpose of advertising tourist resorts or disseminating information concerning tourist traffic''.

48. One of the purposes of the Act appears to be to exclude from sales tax, specific items which are associated or connected with what can be described as goods or services essential to the community as perceived to be so by Parliament. By virtue of the provisions of s. 5 of the Act and item 51 of the First Schedule to the Act, it is clear that Parliament intended to exclude from sales tax ``books'' other than those enumerated in sub-item 51(1).

49. In our view it is clear that the use of the word ``Books'' first appearing in sub-item 51(1) is in the context of one of a specific number of items, all having the common characteristic of being a specific and distinct means of conveying and disseminating information or knowledge to readers of them.

50. The Tribunal is of the opinion that the word ``Books'' first appearing in sub-item 51(1) must be given its plain and ordinary meaning. The word used is precise, its context in the subject legislation is clear as is the apparent purpose to which the words are directed in that context.

51. In assisting the Tribunal to define the subject word, we have had recourse to the Shorter Oxford English Dictionary, 3rd edition Volume 1 at p. 217 which defines ``book'' as: ``A collection of sheets of paper or other substance, blank, written, or printed, fastened together so as to form a material whole; esp. such a collection fastened together at the back, and protected by covers;...''

We consider that the above definition aptly defines, in ordinary parlance, a book when the words ``which is portable'' are added to the definition (after the word ``whole''). The above definition accords with our view of the plain ordinary meaning of the subject word and we so find. We accordingly find that the word ``Books'' first appearing in sub-item 51(1) has the abovementioned meaning.

52. We turn now to describe the item which the applicant submits is a ``book'' for the purposes of sub-item 51(1) of the First Schedule of the Act.

We find that the item in question is rectangular in shape. It is 10.5 cms long, 6 cms wide and 0.5 cms in depth. The exterior is made of metal and plastic. On the front side of it is a rectangular glass or perspex window, below which are rows of small rectangular rubber buttons each bearing a symbol, letter or word similar to those of a keyboard of a word processor. It bears the words ``WORDMASTER'' on the front. Its functions are to act as a ``thesaurus'', a ``speller'', a ``word game player'', ``phonetic spelling correction'', a function called ``similars'' and a ``crossword solver''. The interior of the item consists of a computer, read-only-memory chip, a circuit board and related circuit elements, a liquid crystal display and a battery. Information relevant to the above functions is shown to the person operating the necessary buttons in the display window. The item in question is a sealed unit with the only external movable parts being the keyboard buttons. Ostensibly, one of its main functions is to provide information in the form of that pertaining to a thesaurus. All information relating to its various functions is communicated via the window on the face of the item. Quite clearly, the item can be described as one which conveys information to the reader of that which appears on the item's window or screen. This is the same function possessed by a book (as previously defined). Does this then make the item a book (as previously defined)?

53. The applicant submits that this similarity in function should assist us in determining that the item is a book for the purposes of sub-item 51(1).

We think not for the following reason.

The function of a particular item does not necessarily define the item in question. Take for example, a bucket which carries 15 litres of water and a bag which does the same. The function is the same in each case and particularly so if each is specifically designed to do so, and, are commonly known as respectively a water bucket and a water bag. But can it be said that the bucket is a bag, or vice versa? It goes without saying that the answer is no. Each is entirely different in its nature, although each performs exactly the same function i.e. the conveyance of 15 litres of

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ATC 2032

water. And so it is, in our view, with the item in question and a book (as defined).

Can it be said that in this day and age, bearing in mind the technological advances of recent times, that the word ``book'' has a meaning which includes the item in question.

Again we think not, for the simple reason that a thing is what it is and not more than that. Just because one thing has the same function as another because of technological change, does not bring about the result that they are the one and the same thing. It does not, nor should it change the character of a specific thing.

54. Parliament has enumerated in sub-item 51(1) a number of specific and well-defined, distinct and well-known conveyances for the dissemination of information and knowledge. It has gone to some trouble, as can be seen from the sub-item in question, to specify the types of conveyances namely ``Books, pamphlets, leaflets, periodicals, magazines and printed music'' which it intended to exempt from sales tax. If Parliament wishes to include as exempt from sales tax the item before us, which may be conveniently described as an electronic device designed for conveying certain information, it can do so but it would be inappropriate in our view to circumvent that process by means of emasculating the ordinary, everyday and current meaning of the word ``Books'' as it was when item 51 first came into existence and still is in our opinion today, and say the item in question is a book.

55. The Tribunal finds that the subject item is not a ``book'' for the purposes of Item 51 of the First Schedule of the Act.

56. In reaching our conclusion, we would indicate that we have had regard to the submissions of both parties. Whilst we have not analysed each and every one of them in great detail in these reasons, it does not mean that we have not given them due consideration. Indeed we have. In the end result the resolution of the question as to whether the item under scrutiny is exempt from sales tax by virtue of being a book within the meaning of ``Books'' in sub- item 51(1) where that word first appears has emerged with a good degree of clarity.

57. The item in question differs greatly from our interpretation of ``book'' in sub-item 51(1) and the differences probably go without saying; whilst both are portable and convey printed information, they differ dramatically in physical appearance. A book can be opened at will - the item is sealed. One has a collection of sheets of paper (or other substance) the item does not. One is bound, the other is not. One has the collection (referred to above) fastened together at the back, the other has no such collection. Dissimilarities abound and we have no hesitation in stating the obvious, namely that the item in question is not a book for the purposes of sub-item 51(1) and we so find.

59. The parties agreed in their final submissions that the only question for determination by the Tribunal was whether the item was a book for the purposes of sub-item 51(1) of the First Schedule of the Act, and that if that question was answered in the negative, then there was no necessity for the Tribunal to define the item in question. We accept that this is so.

60. The decision of the Tribunal is that the decision under review is affirmed .