Anixter Australia Pty Ltd and Chief Executive Officer of Customs

[2004] AATA 483

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/1315

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANIXTER AUSTRALIA PTY LTD

Applicant

And CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 May 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen     ..............................................

Senior Member

CATCHWORDS

CUSTOMS TARIFF - whether goods classified to tariff heading 8517 or 8536 - use of Harmonised System Explanatory Notes - items in tariff heading read ejusdem generis - decision to classify “connectors” to tariff heading 8536 affirmed.

Customs Tariff Act 1995 - Schedule 2 and Schedule 3

Customs Act 1901 - s 273 GA

Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (Vic) (1987) 72 ALR 591

Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 585

Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449

Toyota Tsusho Australia Pty Ltd and Nippondenso Australia Pty Ltd v Collector of Customs (unreported) no. VG 113 of 1991 FED No. 282

REASONS FOR DECISION

14 May 2004   Senior Member M D Allen   

1.      By application made the 14^th day of August 2003, the Applicant sought review of a decision by the Respondent that classified the subject goods under heading 8536 in Schedule 3 to the Customs Tariff Act 1995 (“the Tariff Act”). The Applicant claims that the said goods should be classified under heading 8517.

2.      The subject goods are described as “couplers” but are also referred to as “sockets” and as “connectors”.  In the decision under review, the following passage describes the said goods, namely:

“…..the goods provide a means of making connections in communications networks, whether for voice or data and also…..some electrical current passes through the couplers when they are in use.”

A more detailed description of their function is at document T6 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, namely:

“The sole function of the goods is to provide a connection within a communications network, usually a local area network (LAN). They are designed to facilitate the transmission of voice and data signals in a two-way stream.  These transmissions can be between telephones, fax machines, computers or printers.

The couplers operate by receiving a signal from a source device, including a signal from outside the LAN, and distributing that signal to another device (a telephone, fax machine, computer or printer) in the network.

Importantly, the couplers are not designed to make connections in electrical circuits which carry the power to operate devices that receive or generate voice or data signals. Rather they are designed to facilitate the ‘movement’ of those signals between devices in a network.”

3. Schedule 2 of the Tariff Act sets out the interpretive rules for the classification of goods in Schedule 3 namely:

“1…..classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:

…

3. When ..… goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description…..

(b) …..

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.”

4. There are two headings in Schedule 3 to the Tariff Act to which, prima facie, the subject goods may be classifiable, namely:

8517 ELECTRICAL APARATUS FOR LINE TELEPHONY OR LINE TELEGRAPHY, INCLUDING LINE TELEPHONE SETS WITH CORDLESS HANDSETS AND TELECOMMUNICATION APPARATUS FOR CARRIER-CURRENT LINE SYSTEMS OR FOR DIGITAL LINE SYSTEMS; VIDEOPHONES; and

8536ELECTRICAL APPARATUS FOR SWITCHING OR PROTECTING ELECTRICAL CIRCUITS, OR FOR MAKING CONNECTIONS TO OR IN ELECTRICAL CIRCUITS (FOR EXAMPLE, SWITCHES, RELAYS, FUSES, SURGE SUPPRESSORS, PLUGS, SOCKETS, LAMP-HOLDERS, JUNCTION BOXES), FOR A VOLTAGE NOT EXCEEDING 1000 VOLTS.

5.      The first duty of the classifier of goods for Customs tariff purposes is to objectively identify the goods in their condition as imported: see Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (Vic) (1987) 72 ALR 591; Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 585. As stated in Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449, the classification of goods for tariff purposes is a practical wharf-side test.

6.      There was no submissions made by either of the parties that the words in the particular tariff headings were used in any technical sense as opposed to the ordinary use and meaning of the words.

7.      Both parties agreed that the subject goods were electrical apparatus.

8.      The subject goods are of themselves passive media through which low voltage telecommunications signals pass.  As conceded by the Applicant’s witness, Mr Tomasich in cross-examination, the goods, of themselves, do not transmit, receive or emit, signals.

9.      When one examines the words of Tariff Heading 8517, it seems clear that it refers to apparatus that actively transmits or receives data, for example, telephone sets as opposed to cables or connectors through which telecommunication signals passively pass.  I see no reason why the words of heading 8517 should not be read, bearing in mind the ejusdem generis rule of the statutory interpretation.

10.     I am strengthened in this view by having recourse to the Harmonised System Explanatory Notes.  That reference can be made to those notes as an extrinsic aid to resolve ambiguity was made clear by the Full Court of the Federal Court in Toyota Tsusho Australia Pty Ltd and Nippondenso Australia Pty Ltd v Collector of Customs (unreported) no. VG 113 of 1991 FED No. 282.

11.     When reference is had to the Explanatory Notes, especially the exclusions to heading 8517 namely:

“(g) Relays (eg Baudot, Creed or Picard relays), and switching equipment such as selectors for automatic telephone exchanges (heading 8536);

(h) Insulated electric wire, cable, etc., whether or not fitted with connectors, including cords with plugs for switchboards (heading 8544).

Given these notes and the inclusion under heading 8536 of plugs, sockets and other contacts, the purport of the two headings is to my mind clear.

12.     Even if tariff heading 8517 could be said to prima facie describe the subject goods, Interpretory Rule 3 (a) applies and I am of the opinion that heading 8536 is the more specific description of the subject goods.

13.     As I am satisfied that tariff heading 8536 is the correct classification, the decision under review is affirmed.  

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (K. Wong)                .....................................................................................
  Associate

Date of Hearing  23 April 2004
Date of Decision  14 May 2004

Representative for the Applicant    Mr R Fraser, Customs Agent, Connor   Anderson International Pty Ltd              

Solicitor for the Respondent          Mr R Northcote, Australian Government   Solicitor