Cody v Datacraft (Australia) Pty Ltd

Re: BRIAN LEO CODY (COLLECTOR OF CUSTOMS)
And: DATACRAFT (AUSTRALIA) PTY LTD (TRADING AS DATACRAFT DIRECT MARKETING)
No. VG327 of 1988
FED No. 314
Customs and Excise

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Keely(1) and Burchett(2) JJ.

CATCHWORDS

Customs and Excise - Customs duty - Tariff classification Interpretative rules of construction - Approach to construction - Relevance of use of product in categorisation - relevance of foreign decisions affecting tariff provisions.

Customs Tariff Act 1982 schedules 2 and 3, s.17, s.18, s.19

Customs Act 1901 s.167, s.273GA(2)

Administrative Appeals Act 1975 s.44

HEARING

MELBOURNE

#DATE 14:6:1989

Counsel for the Applicant: H. Jolson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: G. Wicks

Solicitor for the Respondent: R. Chessari

ORDER

Th appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In May 1987, the respondent imported into Australia goods which can be described as black switch boxes designed for use with automatic data processing machines. The applicant decided that item 85.19 in Schedule 3 to the Customs Tariff Act 1982 ("the Tariff Act") applied to the subject goods and demanded payment of duty be made accordingly at the rate of 25%; see sub-item 85.19.9. Pursuant to s.167 of the Customs Act 1901 the respondent paid the duty under protest claiming that item 84.55 applied to the subject goods and that duty should be determined at the rate of 2%; see sub-item 84.55.9. The respondent, as applicant, sought a review under s.273GA(2) of the Customs Act by the Administrative Appeals Tribunal of the decision of the applicant. In the exercise of the powers conferred upon it, the Tribunal made a decision setting aside the decision of the applicant and decided further that:-

"(a) the sub-item in Schedule 3 to the Customs Tariff

Act 1982 which applied to the subject goods at the time of their importation into Australia was sub-item 84.55.9; and

(b) that the amount of duty paid in excess of the

amount which was properly payable is to be refunded to the applicant (the respondent to this appeal)."

1. The applicant appeals to this Court from the decision of the Tribunal pursuant to s.44 of the Administrative Appeals Act 1975. The questions of law raised by the appeal can be stated as follows:-
   1. whether it was open to the Tribunal to find as a
   

matter of law, that item 84.55 provided a more specific description than that provided in item 85.19 of the subject goods within the terms of Rule 3(1)(a) of the Rules for the Interpretation of Schedule 3 to the Customs Tariff Act 1982;

2. did the Tribunal err in its application of

Interpretative Rule 3(1)(a) of the Rules for the Interpretation of Schedule 3 to the Customs Tariff Act 1982.

1. The substance of the appeal is on the question whether the subject goods fell to duty under item 84.55 of Schedule 3…