Re Alpha Energy Pty Ltd and Comptroller-General of Customs

[2015] AATA 730

Alpha Energy Pty Ltd and Comptroller-General of Customs [2015] AATA 730 (18 September 2015)

Division:  GENERAL DIVISION

File Number:                   2015/2629

Re:  ALPHA ENERGY PTY LTD                 

APPLICANT

And:COMPTROLLER-GENERAL OF CUSTOMS

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  18 September 2015

Place  Melbourne

The Tribunal decides that:

the applicant may not make an application to the Tribunal for review of a decision of the respondent dated 23 March 2015.

………[sgd]………….

Deputy President

CATCHWORDS – CUSTOMS – duty paid under protest in response to demand for duty in respect of goods entered for home consumption in April 2015 – application for review of decision made in March 2015 regarding tariff classification of goods of same description – no correlation between decision in respect of which payment made under protest and decision of which review sought – no jurisdiction.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth): s 25 and 29(2)
Customs Act 1901 (Cth): ss 8(a); 132; 132AA; 165; 167; 240; 240AA; 243T; 269SM; 269TG; 269TH; 269TJ; 269TN, 269V, 269W, 269X, 269Y, 269YA, 269ZL and 273GA
Customs Tariff Act 1995 (Cth): ss 3, 5 and 15
Customs Tariff (Anti-Dumping) Act 1975 (Cth): ss 7, 8, 21
Judiciary Act 1903 (Cth): 39B

Customs Tariff (Anti-Dumping) Regulation 2013 (Cth): reg 5

REASONS FOR DECISION

1. Alpha Energy Pty Ltd (Alpha Energy) applied for review of a decision made by a delegate of the Comptroller-General of Customs (Comptroller-General) on
   23 March 2015 regarding the tariff classification of certain goods.  The Comptroller-General questioned Alpha Energy’s entitlement to make that application on the basis that it was, for all practical purposes, seeking review of his decision to impose dumping or countervailing duty under the Customs Tariff (Anti-Dumping) Act 1975 (CTAD Act). I have decided that, provided it had paid duty under protest, Alpha Energy was entitled to apply for review of a decision to demand payment of duty payable under any Customs Tariff. There had, however, to be a correlation between the payment under protest and a decision to demand payment of duty payable under any Customs Tariff. In this case, there was no correlation of that sort. The decision made on 23 March 2015 related to the tariff classification of goods entered for home consumption by Alpha Energy but it did not relate to any decision made by the Comptroller-General to demand payment of duty. It related instead to an earlier decision made by the Comptroller-General to exercise his powers under s 240AA of the Customs Act 1901 (Customs Act) to review Alpha Energy’s commercial documents including its Import Declarations.  Furthermore, Alpha Energy had not paid duty under protest in relation to any of the goods that were the subject of the Comptroller-General’s review and decision of
   23 March 2015.  It had paid duty under protest in relation to goods that it has subsequently entered for home consumption in April 2015.  Therefore, it was not entitled to make an application to the Tribunal for review of the decision dated
   23 March 2015. 

BACKGROUND

1. It is not necessary to make findings of fact in this case and I do not do so.  The statements made in this section of my reasons are taken from the sources indicated solely for the purpose of resolving the jurisdictional issue in this case.

1. The officer who reviewed the tariff decision made in relation to the goods in issue (subject goods) set out Alpha Energy’s description of them in her decision as:

   “… a complete mounting kit for solar panels.  The kit allows an installer to mount solar panels on the roof of buildings whether they are domestic or industrial.  The different kits available allow numerous configurations depending on the type of roof, the number of panels to be installed and the type of weather conditions where the panels will be located.

   The kits consist of:

   Aluminium extruded rail that forms part of the securing of the panels. 
   Splice kit which allows lengths of rail to be attached to each other when required;
   Mid clamp – which allows the installer to space the panels correctly …
   Grounding clip/earth clip – to earth the installation;
   End clamp to provide a stopping point along the rails when the panels are installed
   

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T10 at 186-187

   Front and back legs to allow the panels to be angled correctly to obtain the greatest input from the sun.”[1]

1. On 23 June 2014, the Targeted Intervention and Enforcement (TIE) group in what was then the Australian Customs and Border Protection Service (ACBPS) wrote to Alpha Energy regarding a compliance assessment it had conducted under s 240AA of the Customs Act. The assessment related to import records kept by Alpha Energy and, in particular, to seven Full Import Declarations (FIDs) for the period from 13 January 2012 to 19 June 2012.[2] As part of that assessment, the TIE formed the view that the subject goods had been incorrectly classified to heading 7610.90.00 (Aluminium Structures) of Schedule 3 to the Customs Tariff Act 1995 (CT Act) as a structure.[3]  The TIE specified the headings to which the subject goods should have been classified and recommended that Alpha Energy’s customs broker amend the Import Declarations that had been submitted in relation to the goods in order to classify the goods correctly.[4] 

   [2] FIDs numbered AA6HYGXLH, AA6H9JPPF, AA6T76P9M, AA69E9T6F, AA7C9FHW4, AA7JC3FJT and AA7TLPJA4.

   [3] T documents; T4 at 63-66

   [4] T documents; T3 at 45-46

1. The TIE also concluded that the aluminium extrusions being the rails were subject to anti-dumping measures under the CTAD Act. It drew Alpha Energy’s attention to s 243T of the Customs Act. That section relates to statements that are false or misleading in a material particular in respect of particular goods. If the amount of duty properly payable on the goods exceeds the amount of duty that would have been payable on the basis of the statement, had it been correct, the owner of the goods commits an offence.[5]  An owner also commits an offence if the amount of refund or drawback of duty payable on the basis of the statement, had it been correct, exceeds the amount of refund or drawback properly payable.[6]  The penalty for a conviction for an offence is an amount not greater than the excess together with 60 penalty units.[7] An owner does not commit an offence if the circumstances in s 243T(4) apply. Among them is that he or she has voluntarily indicated that the statement is false or misleading in a material particular (an error notice) and has paid the duty in full or the excess of refund or drawback.[8]  Timing is important, though.  For example, an error notice will not be taken to have been given voluntarily if it is given after an officer has exercised a power under a Customs-related law to verify information in the statement that was initially given.[9]

   [5] Customs Act; s 243T(1)(b)(i)

   [6] Customs Act; s 243T(1)(b)(ii)

   [7] Customs Act; s 243T(3)

   [8] Customs Act; s 243T(4)(a)

   [9] Customs Act; s 243T(4A)(a)

1. On 29 October 2014, Alpha Energy submitted a Tariff Advice Application (TA) to ACBPS and claimed that the subject goods were classified to heading 7610.90.00 as a structure.[10]  That heading was that which the TIE had found to be an incorrect classification of the subject goods.  The TA was rejected in view of the TIE’s determination.

   [10] T documents; T4 at 63-66

1. On 9 February 2015, the ACBPS wrote to Alpha Energy’s custom broker asking for further evidence regarding its request for review of the decision to reject the TA.  Apart from a point of clarification, the Comptroller-General asked for evidence that the goods were ordered, packaged and imported as kits and how they had been ordered, invoiced and packaged on their importation.[11] 

   [11] T documents; T6 at 130

1. The officer at the ACBPS reviewing the tariff classification decided on 23 March 2015 that there was a great deal of variation in the way in which the subject goods were ordered and delivered.  She decided:

   “The goods are not structures, nor are they unassembled structures as they do not have all the parts to make a complete structure as imported. 7610.90.00 is excluded …

   … the goods packaged together and labelled as 1.5kw Racking systems … can be called sets and classified to 7616.99.00 ….  The rails will be classified separately to heading 7604.19.00 being a hollow profile as they are not part of the set.  There are no markings identifying the goods as part of a set and they will need to be repackaged for retail sale to the end user.”[12]

The reference to heading 7604.19.00 should be a reference to 7604.21.00.[13]

[12] T documents; T10 at 201

[13] Statement of Reasons lodged under s 37(1) of the AAT Act: T documents; T2 at 30

1. The classifications under consideration were among the following:

7610	ALUMINIUM STRUCTURES (EXCLUDING PREFABRICATED BUILDINGS OF 9406.00.00) AND PARTS OF STRUCTURES (FOR EXAMPLE, BRIDGES AND BRIDGE-SECTIONS, TOWERS, LATTICE MASTS, ROOFS, ROOFING FRAMEWORKS, DOORS AND WINDOWS AND THEIR FRAMES AND THRESHOLDS FOR DOORS, BALUSTRADES, PILLARS AND COLUMNS); ALUMINIUM PLATES, RODS, PROFILES, TUBES AND THE LIKE, PREPARED FOR USE IN STRUCTURES:
7610.10.00	-Doors, windows and their frames and thresholds for doors	5% CA:Free
7610.90.00	-Other	5% CA:Free
7616	OTHER ARTICLES OF ALUMINIUM:
7616.10.00	-Nails, tacks, staples (other than those of 8305), screws, bolts, nuts, screw hooks, rivets, cotters, cotter-pins, washers and similar articles	5%
7616.9	-Other:
7616.91.00	--Cloth, grill, netting and fencing, of aluminium wire	5%
7616.99.00	--Other	5%
7604	ALUMINIUM BARS, RODS AND PROFILES:
7604.10.00	-Of aluminium, not alloyed	5% DCS:4% DCT:5%
7604.2	-Of aluminium alloys:
7604.21.00	--Hollow profiles	5% DCS:4% DCT:5%
7604.29.00	--Other	5% DCS:4% DCT:5%

1. On 28 April 2015, Alpha Energy paid duty under protest in relation to goods that were loaded in Shanghai and, on 30 April 2015, discharged at Melbourne.  They were the subject of Import Declaration ACK9997JL.[14] It is an Import Declaration unrelated to any of the seven that had been reviewed by the TIE. The total customs value of the goods was calculated on 28 April 2015 following classification of particular goods to particular headings of Schedule 3 to the CT Act. The goods in relation to which Alpha Energy paid duty under protest were those described in Line No. 001 of the document headed “Australian Customs Entry for Home Consumption”.  That line classified the rails to heading 7604.21.00.[15] 

[14] T documents; T1 at 23-25

[15] T documents; T1 at 23 and 25

1. On 27 May 2015, Alpha Energy lodged an application for review of the decision made on 23 March 2015, which it had received on 26 March 2015.  Its reason was that it was “… of the opinion the classification of the goods as outlined in the decision is incorrect.”[16]

   [16] T documents; T1 at 4

THE SUBMISSIONS

1. On behalf of the Comptroller-General, Mr Northcote submitted that the Tribunal does not have jurisdiction to consider Alpha Energy’s application for review. His submission is to the effect that the Tribunal has jurisdiction only where the owner of the subject goods has paid duty under protest under s 167(1) of the Customs Act in relation to duty that is imposed by the CT Act. Disputes regarding duty payable under the CTAD Act are expressly excluded from the process provided for in
   s 167(1). Therefore, the Tribunal may not review a demand made under the CTAD Act for payment of dumping duty.

1. Mr Northcote submitted that there is no dispute between Alpha Energy and the Comptroller-General regarding the duty payable under the CT Act.  Duty would be payable at the rate of 5% on the fastenings under classification 7616.99.00.  The railings would attract 4% duty under classification 7604.21.00 as he understood that they had been imported from a Developing Country.  If they had been imported from a country that was not a developing country, duty would be payable at the rate of 5%.  Were the railings to be classified under 7610.90.00, duty would be payable at 5%.  No lesser rate of duty would be payable even if they had been imported from a Developing Country.

1. The reason for Alpha Energy’s paying duty under protest is clear, Mr Northcote submitted. It wants to dispute its liability to dumping duty under the CTAD Act. Demands for the payment of dumping duty have already been made in relation to several shipments of goods imported by Alpha Energy. Section 167(1) cannot be used as a means to dispute liability to pay dumping duty because duty payable under the CTAD Act is expressly excluded from its scope.

1. On behalf of Alpha Energy, Mr Greedy submitted that it was happy to pay duty at a higher rate.  While he understood that might be an unusual position to take, it is not precluded from taking that position.  It is a dispute that is focused on the classification issue.  Certainly, Alpha Energy has a dispute with the Comptroller-General regarding dumping duty but that is a matter separate from the dispute it has over classification.

   LEGISLATIVE FRAMEWORK

The imposition and collection of duty

1. Section 15 of the CT Act provides that:

   “Duties of Customs are imposed by this Act on:

   (a) goods imported into Australia on or after 1 July 1996; and

   (b) goods:

   (i) imported into Australia before 1 July 1996; and

   (ii) entered, or again entered, for home consumption on or after that day.”

1. Sections 16, 17, 18, 20 and 22 of Part 2 set out how those duties are calculated.  Generally, that duty is an ad valorem duty calculated at a rate for particular goods by reference to the classification to which those goods belong and by reference to whether they are originating goods of a particular country or the produce or manufacture of a Developing Country, a Preference Country or a Forum Island Country. Those terms are explained in Part 1 of the CT Act. Classification is, in most cases, determined by reference to Schedule 3 of the CT Act.[17]

   [17] See generally CT Act; ss 6 and 9

1. Part VIII of the Customs Act is concerned with duties including their payment and computation. Although subject to qualification, the general position is that “… the rate of any import duty payable on goods is the rate of the duty in force when the goods are entered for home consumption.”[18]  Section 132AA sets out the time at which import duty must be paid.  Again taking the general rule that is subject to various qualifications, import duty must be paid at the time of entry of the goods for home consumption.[19]

   [18] Customs Act; s 132(1)

   [19] Customs Act; s 132AA(1); Item 1. Item 2 deals with goods prescribed by the regulations and entered for home consumption. The time at which duty must be paid is the time worked out by reference to the relevant regulations. The subject goods are not subject to any such regulations. Items 3 and 4 are inapplicable to the subject goods. Item 3 is concerned with goods that are not required to be entered. There is no suggestion that these are goods that are not required to be entered. Item 4 has no application for it applies to goods consigned through the Post Office and having a value less than $1,000. The subject goods do not fall within that description.

1. Division 3 of Part VIII is concerned with the payment and recovery of deposits and refunds of duty as well as unpaid duty and the like.  Of relevance is s 165 which provides for the recovery of unpaid duty.  Section 165(1) provides that an amount of duty that is due and payable in respect of goods is a debt due to the Commonwealth and is payable by the owner of the goods.  The Comptroller-General may make a written demand for payment of an amount that is a debt due to the Commonwealth under s 165(1).[20]  The demand must specify the amount and include an explanation of how it has been calculated[21] and be made within the time specified in s 165(5).

Resolution of disputes regarding amount or rate of duty under the Customs Act

[20] Customs Act; s 165(3)

[21] Customs Act; s 165(4)

A.       Payment under protest

1. Section 167(1) of the Customs Act provides that:

   “If any dispute arises as to the amount or rate of duty payable in respect of any goods, or as to the liability of any goods to duty, under any Customs Tariff, or under any Customs Tariff or Customs Tariff alteration proposed in the Parliament (not being duty imposed under the Customs Tariff (Anti-Dumping) Act 1975), the owner of the goods may pay under protest the sum demanded by the Collector as the duty payable in respect of the goods, and thereupon the sum so paid shall, as against the owner of the goods, be deemed to be the proper duty payable in respect of the goods, unless the contrary is determined in an action brought in pursuance of this section.”

   The reference to the “Collector” includes a reference to the Comptroller-General.[22] A payment is taken to have been made under protest only if the notice is given in accordance with s 167(3A) of the Customs Act and the Collector receives the notice no later than seven days after the payment is made.[23] Section 167(3A) provides that a notice given by an owner or agent must, among other matters, identify the import declaration that covers the goods to which the protest relates. If the protest does not relate to all of the goods in that import declaration, it must describe the goods to which the protest does relate.[24]

   [22] Customs Act; s 8(a)

   [23] Customs Act; s 167(3)

   [24] Customs Act; ss 167(3A)(b) and (c)

A.1     Qualification of right to pay under protest

1. Section 167(1) of the Customs Act does not permit duty to be paid under protest if it has been imposed under the CTAD Act. Section 7 of the CTAD Act provides that duties of customs are imposed in accordance with its terms. That legislation must be read with Part XVB of the Customs Act for, together, they regulate anti-dumping in Australia. Section 269SM(1) of the Customs Act gives an overview of the provisions of Part XVB:

   “This Part deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry.  Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice.”

Provision is made for dumping duties,[25] third country dumping duties[26] and countervailing duties.[27]

[25] Customs Act; s 269TG

[26] Customs Act; s 269TH

[27] Customs Act; s 269TJ

A.1.1Imposition of dumping duties

1. I will take dumping duties as an example of the way in which the provisions of the Customs Act and the CTAD Act establish the anti-dumping regulatory framework. Section 8(2) of the CTAD Act provides that:

   “There is imposed, and there must be collected and paid, on goods:

   (a) to which this section applies by virtue of a notice under subsection 269TG(1) or (2) of the Customs Act; and

   (b) in relation to which the amount of the export price is less than the amount of the normal value;

   a special duty of Customs, to be known as dumping duty, calculated in accordance with subsection (6).”

A special duty of Customs payable under the CTAD Act is in addition to any duties of Customs that are payable under any other Act.[28]

[28] CTAD Act; s 21

A.1.2   Goods that may be the subject of a notice under either ss 269TG(1) or (2)

1. Goods come to be the subject of a notice under either ss 269TG(1) and (2) of the Customs Act after the Minister has followed the preliminary and procedural steps set out in Divisions 1, 2 and 3 of Part XVB and been satisfied that, subject to the qualifications regarding retrospective notices in s 269TN, the goods are either, in the case of s 269TG(1), goods:

   “… that have been exported to Australia, that:

   (a)the amount of the export price of the goods is less than the amount of the normal value of those goods; and

   (b)because of that:

   (i)material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or

   (ii)in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Dumping Duty Act – material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken; …”

or, in the case of s 269TG(2) :

“… goods of any kind, that:

(a)the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and

(b)because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; …”

A notice under s 269TG(2) may be expressed to apply to goods of that kind exported from a particular country or goods of that kind exported by a particular exporter.[29] I understand that the goods are described by reference, at least in part, to the heading under which they are classified under Schedule 3 of the CT Act.

[29] Customs Act; s 269TP

A.1.3   Calculation of interim and final duty

1. Section 8(5) of the CTAD Act provides that the Minister must determine that the interim dumping duty payable on goods is an amount worked out in accordance with the method specified in a signed notice. The method specified must be one of the methods specified in s 8(5BB) and must comply with the principles set out in
   ss 8(5B) to 8(5BE). Regulation 5 of the Customs Tariff (Anti-Dumping) Regulation 2013 sets out the methods for working out interim dumping duty for the goods the subject of a notice under ss 269TG(1) or (2) of the Customs Act.

1. The amount of the final dumping duty payable on goods the subject of a notice under ss 269TG(1) or (2) of the Customs Act is calculated in accordance with s 8(6) of the CTAD Act:

   “The dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act is an amount equal to:

   (a) unless paragraph (b) applies—the difference between the amounts that the Minister ascertains to be the export price and the normal value of those particular goods; or

   (b) if the interim dumping duty payable on those particular goods is ascertained by reference to the non-injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice—the difference between:

   (i) the amount that the Minister ascertains to be the export price of those particular goods; and

   (ii) the lower of the amount that the Minister ascertains to be the normal value of those particular goods and that non-injurious price.”

A.1.4   Reconciliation of interim duty and final duty payable under the CTAD Act

1. Division 4 of Part XVB of the Customs Act provides for the reconciliation of the interim duty and the final duty that is payable under the CTAD Act. Sections 269V and 269W provide that importers may apply for an assessment of the duty payable under the CTAD Act and the manner in which they do so. Sections 269X and
   

   [30] Customs Act; s 269Y

   s 269YA regulate the consideration of an application for a duty assessment.  If the final duty is less than the interim duty, the excess is refunded.  If the duty is more than the interim duty, the interim duty is treated as the final duty and the balance waived.[30]

A.1.5   Review of assessment of dumping duty

1. Divisions 5 to 9 of Part XVB deal with various aspects of the anti-dumping measures.  Review is provided for in Division 5 in relation to Ministerial decisions to publish dumping duty notices or to accept undertakings.  Division 9 also provides for review of a range of Ministerial decisions and of the Comptroller-General including, under Subdivision C of Division 9 of Part XVB, decisions relating to the assessment of dumping duty.  Review under Division 9 is undertaken by the Review Panel which is established under s 269ZL in Division 8 of Part XVB.

1. In addition to review by the Review Panel, an assessment of dumping duty may be reviewed by the Federal Court by way of an application under s 39B of the Judiciary Act 1903 to restrain recovery of the duty imposed, a writ of prohibition in respect of the classification decisions and a declaration about the correct classification.

B.       Right to bring action in court for recovery

1. An owner who has made a payment under protest may, within the time limits set out in s 167(4), “… bring an action against the Collector, in any Commonwealth or State Court of competent jurisdiction, for the recovery of the whole or any part of the sum so paid.”[31]  Where the sum is paid as duty payable under the CT Act, the time limit is six months after the date of payment.

   [31] Customs Act; s 167(2)

C.       Review by the Tribunal

1. Provided the time limits prescribed in s 167(4) are met,[32] he or she may lodge an application in the Tribunal for review of the Collector’s decision.  In full, s 273GA(2) provides:

   “Where a dispute referred to in subsection 167(1) has arisen and the owner of the goods has, in accordance with that subsection, paid under protest the sum demanded by the Collector, an application may be made to the Tribunal for review of the decision to make that demand and of any other decision forming part of the process of making, or leading up to the making of, that first-mentioned decision.”

There is nothing in the Customs Act that varies the time prescribed by s 29(2) of the AAT Act i.e. 28 days after the day on which a document setting out the terms of the decision is given to the owner of the goods.

[32] Customs Act; s 273GA(5)

D.       Implementation of court order or decision made on review

1. Section 273GA(7) prescribes the duty that is payable once an action instituted in a court or an application to the Tribunal has been resolved:

   “Where, on an application made under subsection (2), the Tribunal has made a decision reviewing a demand made by the Collector, the proper duty payable in respect of the goods concerned shall be deemed to be:

   (a) the sum determined to be the proper duty by, or ascertained to be the proper duty in accordance with:

   (i) the decision of the Tribunal; or

   (ii) an order of a court on appeal from that decision; or

   (b) the sum paid under protest; whichever is the less.”

CONSIDERATION

The right to make an application to the Tribunal to review a decision

1. The right to make an application to the Tribunal to review a decision classifying goods under the CT Act is found by first reading s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  It provides:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; …”

1. The Customs Act is an enactment of the sort described in s 25(1) of the AAT Act. Section 273GA(2) is a provision of the sort referred to in s 25(1)(a). Section 273GA(2) has two features for it describes both the decisions in relation to which an application may be made to the Tribunal and the circumstances that must exist before such an application may be made. The circumstances themselves have two features. One is that a dispute has arisen as to the amount or rate of duty payable in respect of any goods or as to the liability of any goods to duty under any Customs Tariff not being a duty imposed under the CTAD Act. The other feature of the circumstances is that the owner of the goods has paid the duty demanded under protest in accordance with s 167(1). The decision in relation to which an application may be made to the Tribunal for review is the decision to make that demand or any other decision forming part of the process of making, or leading up to the making of, the decision to make that demand.

1. In this case, I am satisfied that a dispute has arisen as to the amount or rate of duty payable in respect of goods or as to the liability of those goods to duty under any Customs Tariff.  The goods are those described in Import Declaration ACK9997JL.  I am satisfied that the owner of those goods has made a payment under protest in relation to those goods.  Had Alpha Energy wished to lodge an application to the Tribunal for review of the decision to make the demand and any other decision forming part of the process of making, or leading up to, the making of that decision, it could have done so.  If it were to apply for an extension of the time permitted for lodging an application and that extension were granted, it could still do so.[33]

   [33] It may be that, on the facts of a particular case, both customs duty and duty under the CTAD Act may be payable. An applicant would not be prevented from seeking review of a decision to make a demand for duty payable under the CT Act with consequential review of the classification of the goods. That classification may be relevant in the imposition of duty under the CTAD Act but the fact that it is a matter entirely separate from the Tribunal’s review of any demand for duty payable under the CT Act. As s 21 of the CTAD Act states, duty payable under that legislation is in addition to any duties of Customs that are payable under any other Act. It must be taken as a duty separate from that imposed under the CT Act.

1. Alpha Energy has not done so. Instead, it has applied for review of the decision of the ACBPS officer dated 23 March 2015 and received by it on 26 March 2015. That is the decision it describes in its application. That decision relates to duty demanded in relation to goods that were entered for home consumption in the period between 13 January 2012 and 19 June 2012. It was a decision reviewing the tariff classification of the goods in FIDs AA6HYGXLH, AA6H9JPPF, AA6T76P9M, AA69E9T6F, AA7C9FHW4, AA7JC3FJT and AA7TLPJA4 determined by the TIE when it reviewed the commercial documents produced to it by Alpha Energy under s 240 of the Customs Act. It is apparent from the legislative provisions that I have set out above that such a review by the TIE does not lead to a demand for payment of duty and for payment of that duty to be made under protest under s 167(1). There is, instead, a separate regimen set out in Division 4 of Part XIII in which s 243T is located.

1. Although the decision of which Alpha Energy seeks review arises out of a dispute as to the amount or rate of duty payable in respect of goods to duty under the CT Act, it has not made a payment under protest in relation to those goods.  They are the goods identified in FIDs AA6HYGXLH, AA6H9JPPF, AA6T76P9M, AA69E9T6F, AA7C9FHW4, AA7JC3FJT and AA7TLPJA4.  It has made a payment under protest only in relation to the goods described in Import Declaration ACK9997JL.  Therefore, it is not entitled to make an application to the Tribunal in respect of the decision of the review officer dated 23 March 2015 as it seeks to do.

I certify that the thirty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:         ………........................[sgd]................................

Associate

Date of Hearing  18 August 2015

Date of Decision  18 September 2015

Advocate for the Applicant            Mr Brett Greedy
Customs and Trade Consultant

Advocate for the Respondent       Mr Roger Northcote