“(3) A supply of anything in the course of catering includes— ( a ) … and ( b ) any supply of hot food for consumption off those premises; and for the purposes of paragraph ( b ) above “hot food” means food which, or any part of which— (i) has been heated for the purposes of enabling it to be consumed at a temperature above the ambient air temperature; and (ii) is above that temperature at the time it is provided to the customer.”
“The pies are centrally prepared in the bakery. In the bakery the filling of the pies is cooked and the cooked fillings are enclosed in their pastry covers. They are then taken early in the morning to the retail shops, where the second process of heating takes place. They are baked in the shops in ovens with which the shops are equipped in order to cook the pastry covering which, in this process, re-heats the filling which had been previously cooked in the bakery. When the pies come out of the oven, properly cooked and for the first time in a condition to be sold, they are stacked on trays, and after an initial period to enable them to be cooled sufficiently to be handled, they are stacked in wooden racks stacking from the top downwards. When they are sold, they are sold also from the top downwards so that what the customer gets, short of a particular request for something else, will always be the coolest of the pies which are in the stacked rack. There is not in any of the shops any means for keeping the pies hot; they are simply put in the racks where they cool naturally. It takes some considerable time for the pies to cool so that they are below the ambient temperature–whether one regards that as being the temperature within or without the shop–but they remain pleasantly warm for a period of about one hour. There are two bakings which take place in the shops. The first of them is at or before the time when the shop opens. There is a second baking shortly before the lunch-hour when demand is at its peak. This system has been in operation for a long time. It is accepted that the major purpose of the baking in the shops is because it provides a pleasant smell and atmosphere, and makes it plain to customers that what they are getting are freshly-baked pies.”
“We were referred to a number of authorities on the different wordings as to the meaning of ‘purpose’. For my part, I find none of those authorities of any assistance. What has to be determined is what is intended by the words used in note (3); and the question which has to be asked is: Were these pies, or any of them, heated for the purpose of enabling them to be consumed hot? The evidence was that it was not part of the purpose of the taxpayers to enable the pies to be consumed hot, but it is said that they must have had, unconsciously or consciously, a direct or indirect purpose that, to some extent at any rate, the heat was applied for that purpose. For my part, I am unable to accept that that is the position. These pies were pies which were not capable of being sold at all until they had received their second baking. Having received their second baking, they would then be sold and no doubt, during the course of the lunch-hour, some people would buy them for their own purpose, namely, consumption hot. But I am unable to accept that, because that was the position, it must be regarded as the taxpayers’ purpose to enable the pies so to be consumed. What is in effect being advanced is that the provisions of note (3) should have read into them additional words. Instead of reading ‘has been heated for the purpose of enabling it to be consumed at a temperature above the ambient air temperature’, there should be added these words also— ‘or which, to the knowledge of the supplier, would or might be consumed at a temperature above the ambient air temperature’. I can see no warrant for reading into a taxing statute words that are not there. It is a first principle of revenue law that the subject shall only be taxed by clear words, and it is impermissible to look at the substance or to imply or read in anything. The words used cannot be made to cover supplies in this case, in my view, save by implication or reading in.”
“The tribunal were perfectly entitled, as I see it, to look at the facts for one purpose and for one purpose only, and that is for the purpose of considering the validity of the evidence given by the taxpayers as to their purpose. It might well be that the facts were such that a tribunal in one case might come to the conclusion that the asserted purpose could not be accepted–as, for example, while stoutly asserting that it was no part of their purpose in heating the pies to enable them to be consumed hot, evidence was given that there were extensive heating cabinets in the shop which kept the pies hot. Given such facts, I can well see that a tribunal might conclude that the assertion that it was no part of the sellers’ purpose to enable them, or some of them, to be consumed hot was unacceptable. But that goes simply to the weight of the evidence and to nothing else.”
“But the fact is that the evidence shows that the appellant did have two purposes when she heated this food by way of cooking; one was to render it edible and the other was to enable it to be eaten hot if the customer so chose. Once that point had been reached in the analysis, the tribunal had to decide which of those two purposes was the dominant one, if, indeed, there was a dominant purpose.”
“The question is therefore when considering the purpose of heating one can take into account that it is also the Appellant’s purpose to keep them hot after heating. Is this part of the purpose of heating them, or the effect of heating them, rather than a purpose, just as it is an effect that freshly-baked bread can be consumed hot, or that the pies in Pimblett can be consumed while hot, without this being the purpose of heating them? The reason why in those cases it is an effect and not a purpose is that the supplier of bread or the Pimblett company can say that it is indifferent to whether or not it has enabled them to be consumed hot. Indeed with bread it is much more normal to eat it cold. Here, the Appellant cannot say that it is indifferent to whether it has enabled the products to be consumed hot. Everything it has done after heating has finished is to keep them hot so that they can be consumed hot. As the advertising states “There’s no point in going to all this effort if the pizza is delivered cold” (and the same could be said when it is collected by the customer). Accordingly, in the context of the heating of these products the purpose must be not only so as to create an edible product, but also so as to enable them to be consumed hot.”