Philip Morris Limited and Comptroller-General of Customs

Philip Morris Limited (the applicant) sought drawback of import duty payable in respect of goods exported from Australian warehouses in July and August 2019. The Comptroller-General of Customs (the respondent) refused the application, and the applicant sought review of this decision before Deputy President Bernard J McCabe of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant had complied with the requirement to give written notice under Regulation 37 of the relevant customs regulations, and if not, whether there was a discretion to pay the drawback notwithstanding such non-compliance.

The Tribunal determined that strict compliance with the written notice requirement of Regulation 37 was mandatory. The plain language of the regulation indicated that drawback of duty was not payable in the event of non-compliance, and there was no discretion vested in the respondent to permit payment in such circumstances. While acknowledging the potentially harsh outcome for the applicant, particularly given apparent confusion within the Australian Border Force regarding required forms following regulatory amendments, the Tribunal concluded that its review was confined to the explicit requirements of the regulations. The Tribunal noted that any claim for compensation due to defective administration would be a separate process.