Solar Juice Pty Ltd and Comptroller-General of Customs
[2022] AATA 550
•24 March 2022
Solar Juice Pty Ltd and Comptroller-General of Customs [2022] AATA 550 (24 March 2022)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2019/6785
Re:Solar Juice Pty Ltd
APPLICANT
AndComptroller-General of Customs
RESPONDENT
DECISION
Tribunal:Senior Member Keith James; Professor Ann O'Connell, Senior Member
Date:24 March 2022
Place:Melbourne
The Tribunal sets aside the decision under review to refuse the refund application. The matter is remitted to the Respondent for calculation of appropriate duty and/or refund payable to the Applicant for the subject goods with the following directions:
(i)the subject goods are a composite good consisting of rails and boxed components that are a mounting system or kit for tin and tile roofs on which solar panels will be installed; and
(ii)the subject goods are not within the Notice issued under the Customs Act 1901 (Cth) dated 21 October 2010.
........................................................................
Senior Member Keith James; Senior Member Professor Ann O'Connell
CATCHWORDS
CUSTOMS – importation of goods – whether separate or composite goods – whether dumping duty payable – whether goods within scope of Dumping Notice – decision set aside and remitted
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Anti-Dumping Notice No 2015/125 (Cth)
Anti-Dumping Notice No 2020/103 (Cth)
Customs Act 1901 (Cth)
Customs Regulations 2015 (Cth)
Customs Tariff Act 1995 (Cth)Customs Tariff (Anti-Dumping) Act 1975 (Cth)
CASES
Bicycle Corp Pty Ltd and Collector of Customs; Re (1989) 20 ALD 655
Chinese Food and Wine Supplies v Collector of Customs (1987) 72 ALR 591
GM Holden v Commissioner of the Anti-Dumping Commission (2014) 225 FCR 222
Gissing and Collector of Customs; Re (1977) 1 ALD 144
Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561
Paracella Pty Ltd v Comptroller-General of Customs; Re [2021] AATA 1988
Progress Metal Works Pty Ltd and Collector of Customs; Re [1984] AATA 22
Solu Pty Ltd and Comptroller-General of Customs [2019] AATA 2584
Tridon and Collector of Customs; Re (1982) 4 ALD 615
Times Consultants v Collector of Customs (1987) 76 ALR 313Vernon-Carus Australia Pty Ltd v Collector of Customs (1995) 21 AAR 450
SECONDARY MATERIALS
Australian Border Force, ‘List of Current Precedents-as at 11/01/2022’ (Web Page, 11 January 2022)
Australian Customs and Border Protection Service, Trade Measures Issues Paper, Goods Under Consideration - Certain Aluminium Extrusions Exported from the People’s Republic of China, Trade Measures Case 148, 9 November 2009Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 5th ed, 2017)
REASONS FOR DECISION
Senior Member Keith James; Senior Member Professor Ann O'Connell
24 March 2022
1. The Tribunal decides, for the reasons that follow, that:
(a)the goods imported by the Applicant are not subject to the relevant ‘Dumping Notice’;[1]
(b)this is because, for the purposes of the Dumping Notice:
· the Tribunal finds that the imported goods should be treated as composite goods and not as separate items, the composite goods being mounting systems or kits for tin and tile roofs to which solar panels are to be installed; and
· the imported goods come within the exception to the Notice being ‘unassembled products containing aluminium extrusions’.
[1] The Dumping Notice refers to the Notice issued under the Customs Act 1901 (Cth) that invokes ss 8 and 10 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth). Section 8 imposes dumping duty and s 10 imposes countervailing duty (together Dumping Duty). The Notice is reproduced at paragraph [14].
INTRODUCTION
The Applicant, Solar Juice Pty Ltd (‘Solar Juice’) imports goods from China that are supplied to installers of solar panels on buildings, both residential and commercial. The imported goods consist of aluminium rails and various clamps and other components (‘boxed components’) that attach the rails to the roof. The goods vary depending on whether the roof construction is of tin or tile. Solar Juice imports the goods which are manufactured in China by Changzhou Allstar Energy Technology Co Ltd (‘Allstar’). Similar goods were imported from China between 1 February 2015 and 9 May 2019 and were supplied by several suppliers, but most recently by Allstar. The solar panels were imported separately and are not part of this case.
The Respondent, the Comptroller-General of Customs (‘Customs’), states that the relevant goods are the rails, and those goods are aluminium extrusions that are subject to special dumping duty.[2] This special dumping duty arises under the Dumping Notice, issued by the relevant Minister under s 269TG of the Customs Act 1901 (Cth) (‘Customs Act’).
[2] Respondent’s Statement of Facts Issues and Contentions, dated 29 October 2021 [8].
The effect of the Dumping Notice is that the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (‘Anti-Dumping Act’) is declared to apply to the goods (referred to as the Goods Under Consideration, or GUC) and to ‘like goods’ exported from China after the Dumping Notice was published. The relevant Dumping Notice was issued in 2010[3] but has been continued, in 2015[4] and most recently in 2020.[5]
[3] Notice issued by the then Attorney-General on 21 October 2010, copies are included in the opening pages of the public report of the investigation into alleged dumping and subsidisation of ‘certain aluminium extrusions’: Report to the Minister No 148. The Notice is reproduced below.
[4] See Anti-Dumping Notice No 2015/125, 20 October 2015.
[5] See Anti-Dumping Notice No 2020/103, 12 October 2020.
Solar Juice was issued with a compliance assessment under s 240AA of the Customs Act on 15 August 2019 that determined that dumping duty and countervailing duty (together ‘Dumping Duty’) (plus GST) of $1,670,962.66 was payable on imported goods.[6] As there is no procedure for objecting to such assessments, Solar Juice paid interim duty on one importation ($21,066.56 plus GST) on 17 October 2019 and lodged an application for a refund under s 163 of the Customs Act. On or about 18 October 2019, the application for a refund was rejected (‘the refund rejection decision’).[7] The delegate of the Respondent that rejected the application for a refund, provided a Statement of Reasons for the refund rejection decision on 27 November 2019[8] in which she referred to an earlier Internal Review Report dated 8 August 2016[9] as setting out ‘finding (sic) on material questions of fact and reasons’ for the view that a refund was not available.
[6] T20.5 of the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) (‘T documents’), 365.
[7] T25.
[8] T2.
[9] T10.
Solar Juice lodged an application under s 273GA(1)(haaa) of the Customs Act for review by the Tribunal of the refund rejection decision on 18 October 2019.
The question for consideration by the Tribunal is whether the decision to deny a refund of interim duty paid under ss 8 and 10 of the Anti-Dumping Act, should be set aside or affirmed. The interim duty relates to one shipment of goods imported by the Applicant on 7 December 2018, but the case is a test of the principles to be applied in relation to Dumping Duty. A decision one way or another will have consequences for the Applicant, and possibly for other importers of similar goods, depending on their particular facts and circumstances.
ISSUES
The issue for the Tribunal in deciding whether Dumping Duty is payable depends on whether the goods come within the terms of the Dumping Notice, or whether they are excluded. This involves identifying the imported goods and interpreting the Dumping Notice.
A key factual issue in this case is whether what is being imported is aluminium rails (which are subject to Dumping Duty) as well as other goods being the boxed components (that are not subject to the duty); or a composite good consisting of rails and the boxed components that constitute a mounting system or kit that may not be subject to dumping duty.
The parties raised an additional issue, namely the appropriate classification of the goods under the Customs Tariff Act 1995 (Cth).
LEGISLATIVE CONTEXT
In this case, duty has been imposed under the Anti-Dumping Act as a result of the Dumping Notice published by the relevant Minister under ss 269TG (in relation to dumping duty) and 269TJ (in relation to countervailing duty) of the Customs Act. The relevant legislative provisions are as follows:
Customs Tariff (Anti-Dumping) Act 1975 (Cth)
Section 8 Dumping duties
….
(2) 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).
(3) Pending final assessment of the dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, an interim dumping duty is payable on those goods.
Section 10 of the Anti-Dumping Act is in similar terms and imposes countervailing duty and interim countervailing duty.
The relevant provisions of the Customs Act are as follows:
Section 269TG Dumping duties
(1) Subject to section 269TN, where the Minister is satisfied, as to any 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;
the Minister may, by public notice, declare that section 8 of that Act applies:
(c)to the goods in respect of which the Minister is so satisfied; and
(d) to like goods that were exported to Australia after the Commissioner made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.
(2) Where the Minister is satisfied, as to 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;
the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.
Section 269TJ is in similar terms and provides for the Minister, by public notice, to declare that s 10 of the Anti-Dumping Act applies to goods (ss(1) or to like goods ss(2)).
The Notice that the Respondent relies on was issued by the relevant Minister (at that time, the Attorney-General) in 2010 but has been continued a number of times with the effect that the original Notice continues to apply.[10] The Notice was published by Customs and Border Protection[11] as part of its Report – Trade Measures Report No 148.[12] The terms of the Notice as it appeared in Report No 148 are as follows:
[10] See footnotes 4 and 5.
[11] As Australian Border Force was previously known.
[12] See Anti-Dumping Notice (ADN) 2010 and Issues Paper and Report 148; the most recent Notice is ADN 2020/103.
Customs Act 1901 - Part XVB
Certain aluminium extrusions exported to Australia from The People's Republic of China
Findings in relation to a dumping investigation
Notice under section 269TG (1) and (2) of the Customs Act 1901
The Australian Customs and Border Protection Service (Customs and Border Protection) has completed its investigations into the alleged dumping of certain aluminium extrusions (the goods), classified to tariff subheading 7604 00 00, 7608 00 00 and 7610 00 00, in Schedule 3 of the Customs Tariff Act 1995 exported to Australia from the People's Republic of China (China).
In Trade Measures Report No 148 (REP 148) Customs and Border Protection recommended the publication of a dumping duty notice in respect of the goods. REP 148 outlines the investigations carried out by Customs and Border Protection, a statement of the reasons for the recommendations contained in REP 148, material findings of fact or law on which Customs and Border Protection's recommendations were based and particulars of the evidence relied on to support the findings.
…….
I, ROBERT McCLELLAND, Attorney-General, have considered, and accepted, the recommendations of Customs and Border Protection, the reasons for the recommendations, the material findings of fact on which the recommendations are based and the evidence relied on to support those findings in REP 148. I am satisfied, as to the goods that have been exported to Australia, that the amount of the export price of the goods is less than the normal value of those goods and because of that, material injury to the Australian industry producing like goods might have been caused if the security had not been taken. Therefore under s.269TG(1) of the Customs Act 1901 (the Act), I DECLARE that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 (the Dumping Duty Act) applies to:
• the goods; and
• like goods that were exported to Australia after 3 November 2009 (when the Chief Executive Officer made a Preliminary Affirmative Determination under s.269TD(4)(a) of the Act that there appeared to be sufficient grounds for the publication of a dumping duty notice) but before publication of this notice.
I am also satisfied that 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 because of that, material injury to the Australian industry producing like goods has been caused. Therefore under s.269TG(2) of the Act, I DECLARE that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of this notice.
(Emphasis added.)
………
Dated this 21st day of October 2010.
ROBERT McCLELLAND
THE TRIBUNAL’S JURISDICTION TO REVIEW
It is also necessary to consider the Tribunal’s jurisdiction to review decisions of the Comptroller of Customs. A right to apply for a review is in s273GA (1) (haaa) of the Customs Act that relevantly provides:
Section 273GA Customs Act
Review of decisions
(1) Subject to this section, applications may be made to the Administrative Appeals Tribunal for review of the following:…
(haaa) a decision of a Collector under section 163 in relation to an application for a refund, rebate or remission of duty;…
Section 163 of the Customs Act sets out when refunds of duty may be made:
Section 163 Customs Act
Refunds etc. of duty
(1) Refunds, rebates and remissions of duty may be made:
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
(1A) The regulations may prescribe the amount, or the means of determining the amount, of any refund, rebate or remission of duty that may be made for the purposes of subsection (1).
The Customs Regulations set out when a refund may be made under s 163 (1) (b):
Regulation 102 Customs Regulation 2015
Circumstances for refunds, rebates and remissions of duty
For paragraph 163(1)(b) of the Act, clause 1 of Schedule 6 prescribes circumstances in which a refund, rebate or remission of duty may be made by a Collector.
Schedule 6 Customs Regulation 2015
Refunds, rebates and remissions of duty
1 Circumstances in which a refund, rebate or remission may be made
For section 102, the following table sets out circumstances in which a refund, rebate or remission of duty may be made by a Collector.
Circumstances for refunds, rebates and remissions
Item
Circumstances
…..
6
Both of the following apply:
(a) item 7 does not apply;
(b) duty has been paid on goods because of manifest error of fact or patent misconception of the law.
7
Both of the following apply:
(a) duty has been paid on gaseous fuel because of manifest error of fact or patent misconception of the law;
(b) the person claiming a refund of the duty reasonably believes that the entity to which the goods were sold or supplied considered, at the time of the sale or supply, that duty was not payable on the goods.
The Applicant claimed a refund under these provisions and relied on manifest error of fact or patent misconception of the law in Item 6.
AUSTRALIA’S ANTI-DUMPING SYSTEM
The system that establishes Dumping Duties was summarised for the Tribunal by the Respondent in its Statement of Facts Issues and Contentions as follows:
18. Australia’s anti-dumping provisions which are Part XVB of the Customs Act and the Customs Tariff (Anti-Dumping) Act 1975 reflect relevant international agreements regarding “anti-dumping” and “countervailable subsidy” that were initially made under the auspices of the General Agreement on Tariffs and Trade (GATT),[13] and which since 1994 have been incorporated, as has GATT, into the Marakeesh Agreement that established the World Trade Organisation (WTO).
19. The main relevant elements of the international system are as follows. Dumping occurs when goods exported to a country have a lower “export price” than their “normal value” in their country of origin. Exported goods are subsidised if their production has been indirectly or directly subsidised by any government in the country of origin. When an investigation establishes that exports of dumped or subsidized goods has caused material injury to an industry producing like goods in the importing country, the importing country may impose special duties up to the dumping margin and/or the amount of the countervailable subsidy to prevent further material injury to the local industry.
20. Section 269TB Customs Act provides for applications to be made for duty notices to the Anti-Dumping Commissioner (ADC). If the ADC considers the application provides reasonable grounds for the publication of a duty notice, the ADC may initiate an investigation pursuant to s.269TC. The initiation notice must, inter alia, specify particulars of the goods the subject of the application (usually referred to as the goods under consideration (GUC), and must also specify the “investigation period” during which exports will be examined, to determine whether the GUC were dumped or subsidised. The Minister, after considering a report on the investigation by the ADC provided pursuant to s.269TEA, may publish notice(s) imposing duties if satisfied of the matters in s.269TG and/or s.269TJ respectively (which reflect the international requirements summarised above).
21. All these steps occurred in the imposition of dumping duties on aluminium extrusions exported from China. (some footnote references omitted)
[13] The two agreements are: the Agreement on the Implementation of Article VI of the General Agreement of Tariffs and Trade (often as the Anti-Dumping Agreement); and the Agreement on Subsidies and Countervailing Measures.
BACKGROUND TO THE DISPUTE
In May 2019, the Respondent issued Solar Juice with a notice to produce commercial documents (T11). Various documents were provided by Solar Juice and queries made (T12 – T19). On 15 August 2019, an assessment was issued which included a demand for $1,670,962.66 in duty and GST in respect of 52 importations in the period from 1 February 2015 to 9 May 2019 (T20). Neither the Customs Act nor the Anti-Dumping Act provide a procedure for objecting to assessments. Instead, it was agreed that Solar Juice would pay interim duty on one importation ($21,066.56 plus GST), which it did on 17 October 2019 and then lodged an application for a refund under s 163 of the Customs Act. On or about 18 October 2019, the application for a refund was rejected (T25).
An earlier interaction related to the period from 2014 to 2016. A compliance audit was conducted that required the Applicant to produce commercial documents, including those in T3. Initial tariff advices and assessments were provided (included in T23). A final demand was issued on 24 November 2015, seeking $1,751,605.72 duty and GST (T21.1). An internal review of those initial decisions was sought (T6). A shipment of rails and other components were examined, and photographs taken (T9). The Respondent provided an Internal Review Report on 8 August 2016 (T10) that relevantly affirmed the previous tariff advices and concluded that the rails should be classified to Tariff Heading 7604. Relevantly, the Report noted:
(a)To that end, this report addresses the tariff classification of goods entered for home consumption on [two] shipments; and
(b)This report does not provide advice as to goods subject to anti-dumping measures. The application of interim dumping duty and countervailing duty is a self-assessment process and information in regard to Anti-Dumping measures is contained in the Dumping Commodity Register for Aluminium extrusions.
Despite this, it appears that the Respondent formed the view that the imported goods were subject to Dumping Duty as set out in the final demand issued on 24 November 2015. It appears that this amount is unpaid.
Are the imported Goods covered by the Notice?
In reviewing the decision to refuse a refund of interim duty paid by Solar Juice, the task for the Tribunal is to determine whether the imported goods are subject to Dumping Duty as a result of the Dumping Notice.
The Tribunal was only referred to one case that dealt with the interpretation of a Dumping Notice, Re Paracella Pty Ltd v Comptroller-General of Customs [2021] AATA 1988, where a Notice dealing with steel pallet racking did apply. The Tribunal was, however, referred to a number of cases that have considered whether imported goods are subject to particular rates of tariff under the Customs Tariff Act 1995 (Cth). Although none of the cases deal directly with the issue before the Tribunal, they do provide guidance on some specific matters. The cases include Re Gissing and Collector of Customs (1977) 1 ALD 144 (Re Gissing); Re Tridon and Collector of Customs (1982) 4 ALD 615 (Re Tridon); Chinese Food and Wine Supplies v Collector of Customs (1987) 72 ALR 591 (Chinese Food and Wine); Times Consultants v Collector of Customs (1987) 76 ALR 313 (Times Consultants); Re Bicycle Corp Pty Ltd and Collector of Customs (1989) 20 ALD 655 (Re Bicycle Corp); Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 (Marine Power); Vernon-Carus Australia Pty Ltd v Collector of Customs [1995] FCR 450 (Vernon-Carus); GM Holden v Commissioner of the Anti-Dumping Commission (2014) 225 FCR 222 (GM Holden); Solu Pty Ltd and Comptroller-General of Customs [2019] AATA 2584 (Solu) and Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 (Pharm-A-Care).
Relevantly those cases indicate that a two-stage process is required i.e. the first step is to identify the goods (identification), and the second step is to determine which head of tariff is most appropriate (classification). For example, in Re Gissing, Brennan J had to consider whether imported goods consisting of a shirt and a pair of shorts, of a size suitable for a young child, fell within one of two tariff classifications that imposed different rates of tariff. The Tribunal described the task as follows:
The question raised by the application is one of classification. In order to answer
the question, it is necessary to identify the goods, and by construing the Tariff, to determine which provision of the Tariff includes the goods so identified.
This two-stage approach was affirmed by the High Court in Pharm-A-Care in 2020 at [17].
Although the task of the Tribunal is not confined to which tariff classification is appropriate, the two-stage approach can be adapted to the task of the Tribunal in determining whether the Dumping Notice applies to the goods (i.e., the Tribunal must identify the imported goods and then consider whether the goods are within the Notice).
In relation to identification of the goods, the Tribunal in Re Gissing (at 145) noted:
Identification of goods to be classified is often a simple exercise. When goods are separate units, each identical with the others, and possessing no distinctive feature by reason of their association, each unit may be identified self-evidently as the relevant entity for classification. On the other hand, there is sometimes a relationship between or among various units of such a kind as to identify them as a combination rather than as separate units. The test to be applied is whether the identity of the units is subordinated to the identity of the combination.
In Re Tridon, a Full Tribunal (at 620) confirmed this approach to identification and summarised the principles as follows:
Identification
15. As the Tribunal has said on many previous occasions, the starting point in resolving questions of Tariff classification, is to identify the goods in their condition as imported (see Re Gissing and Collector of Customs). Those principles may be conveniently summarised (although not exhaustively stated) as follows:
(i) Identification must be objective, having regard to the characteristics which the goods, on informed inspection, present;
(ii) The identification of goods cannot be controlled by the descriptions of goods adopted in the nomenclature of the Tariff;
(iv) In the identification of goods, knowledge of how those who trade in the goods describe them will usually be relevant, but not necessarily conclusive;
…..
(vii) Identification will frequently extend to characterisation of goods by reference to their design features, or by reference to their suitability for a particular use where those characteristics emerge from informed inspection of the goods as imported: The extent to which these characteristics may be relevant to the ultimate classification of the goods and whether evidence of the use to which goods are put after importation is relevant, will depend upon the language of the Tariff Nomenclature;
(viii) Composite goods, notwithstanding that they have components which are separately identifiable, may nevertheless be identifiable in combination as a new entity if the identity of the separate units is subordinated to the identity of the combination.
(Emphasis added.)
Several cases have noted that the task of identifying goods is to be performed at the time of importation. For example, in Re Gissing the Full Tribunal stated (at 146):
In determining the relevant entity, regard is had to the imported goods themselves, in the condition in which they are imported…. They are not identified by reference to the use to which the goods may be put in the future, though their present suitability for that use may be a relevant factor.
In Pharm-A-Care, the High Court stated (at [17]):
Determining the dispute before it, the Tribunal adopted the conventional two-staged approach to tariff classification explained in Re Gissing and Collector of Customs. The first stage involves making findings as to the identification of the goods in the condition in which they were imported, including as to the composition of the goods and the functions the goods were designed to serve.
This has been described as a “wharf-side task”. For example, in Times Consultants, the Full Federal Court stated (at 328):
It must always be remembered that the classification of goods for tariff purposes is a practical ‘wharf-side’ task. Upon some occasions it will be necessary for the classifier to obtain information to enable identification of the goods…. It ought normally be possible to classify goods merely by looking at them and by considering their nature and the function which they were designed to serve.
Similarly, in Solu, the Tribunal noted (at [30]):
The classification of goods for tariff purposes is a practical “wharf-side” task. In some instances it is necessary to obtain information to enable identification of the goods but “It ought to normally be possible to classify goods merely by looking at them and by considering their nature and the function which they were designed to serve”; Times Consultants Pty Ltd v Collector of Customs (QLD) (1987)16 FCR 449 at 463.
Although it was accepted that in Vernon-Carus, Northrop J had stated at [20] that:
a “practical wharf-side” task, may not be appropriate. Evidence may need to be received relating to the formal purpose of the goods. In cases of this kind, the heading will need to be construed properly in order to determine what evidence is relevant to identify the goods”.
Other cases have noted that the test is objective and does not depend on what the importer or exporter say. For example, in Chinese Food and Wine, the Full Federal Court stated (at 599):
Whether the goods fall within the relevant item [of the Tariff] is determined by an objective test not by the intentions of the manufacturer in China or the exporter or the importer. The test is applied at the port of entry of the goods and at the time of entry. The characteristics of the goods, their get-up, colour, decoration, labelling and packaging are all relevant considerations. In some cases, a visual inspection of the goods and their packaging will disclose characteristics of the goods and enable a judgment to be made as to whether they are for therapeutic or prophylactic use. But visual inspection will not necessarily provide the answer in each case.
In carrying out the identification task it is necessary to have regard to what the goods are designed for. For example, in Solu, Senior Member Poljak considered a range of evidence and noted (at [11]):
All the subject goods except for the mounting track are designed to be used, and will be used after importation, almost always after being cut into suitable length pieces, for installation into wooden furniture. Such furniture will include kitchen cabinets which are often designed to be “built-in”, free-standing cabinets and units, and shelfing units.
The key issue in this case is whether the imported goods should be treated as separate items, only one of which (the Rails) would be subject to Dumping Duty, or whether the goods should be treated as a composite good. The Respondent contends for the former and the Applicant contends for the latter.
In Re Gissing, the Tribunal considered whether the shorts and top were two items or a single item for the purposes of tariff classification. As noted above, the Tribunal stated that where goods are related the test in identifying them separately or as a combination is whether the identity of the units is subordinate to the identity of the combination. The Tribunal continued (at 146):
Applying these principles to the present case, we first seek to identify the relevant entity. The goods consist principally of two garments. They are not sewn together. Each has a separate function to perform in covering the upper and lower parts respectively of an infant's torso. Each is capable of being used apart from the other. Neither article transfers its identity the other. These are factors which tend to identify the shorts and shirt as separate entities. However, there are other factors which tend to identify the shorts and shirt as a single entity. They were imported on a display hanger, covered in clear plastic, as a set. The shorts and shirt are complementary (though not matching) garments suitable for use as a set. They were not imported for sale as separate articles and they are sold for a small price as a single set.
By contrast, in Re Bicycle Corp, the imported goods did not comprise all the components for a bicycle. A Full Tribunal considered that partly assembled bicycles that did not have one, or in some cases both, the wheels, did not have the essential character of ‘bicycles’ and so should be treated separately as ‘parts’ for the assembly of bicycles (attracting a lower rate of duty than for ‘bicycles’). This case is discussed further below.
In Solu, although all of the goods imported were for use in furniture assembly, there was no overriding connection between the various imported goods and so it was appropriate to assess duty separately on each type of imported good.
First step: Identification of the Goods
The parties were in agreement as to the goods that were imported. Andrew Burgess, co-founder, Chief Executive Officer and sales director of Solar Juice provided the following evidence about the goods which vary depending on whether the goods were for installation on a tin roof or on a tile roof, and whether they were for installation of 6 or 8 solar panels;
(i) The 6 panel Tin Roof Mounting Kits are made up of:
(a) two pairs of aluminium rails 4200mm in length (Rails);
(b) one splice pair;
(c) 12 mid clamps;
(d) 4 end clamps;
(e) 2 earthing lugs; and
(f) 16 L brackets (plus T module with bolt pre-assembled).
(ii) The 8 panel Tin Roof Mounting Kits comprise the same components as the 6 panel kits ….. except that the 8 panel kit includes 4 additional mid claims and 4 additional L brackets.
(iii) The 6 panel Tile Roof Mounting Kits are made up of the following:
(a) two pairs of Rails;
(b) one splice pair;
(c) 12 mid clamps;
(d) 4 end clamps;
(e) 2 earthing lugs; and
(f) 12 tile brackets (plus T module with bolt pre-assembled).
(iv) The 8 panel Tile Roof Mounting Kits comprise the same components as the 6 panel kits ….. except that the 8 panel kit includes 4 additional mid clamps and 4 additional tile brackets.
One pair of Rails allows for four solar panels to be mounted, so two pairs of Rails are required for a 6 or 8 panel Mounting Kit.[14]
[14] Amended Witness Statement, Andrew Burgess, 1 December 2021.
The Applicant contends that the goods comprise four types of kits and should be identified as composite goods, being unassembled solar panel mounting kits for tin or tile roofs, suitable for either 6 or 8 solar panels, comprising aluminium and other metals. The Respondent contends that the goods are identifiable as separate components and that the Rails are subject to the Dumping Notice.
As noted, the first step is to consider the goods as imported (the wharf-side task). The Tribunal was shown photographs of the goods as imported. This evidence showed that the components other than the rails were packaged together and are contained in boxes marked with a label that identifies whether the goods are suitable for particular types of roofs, i.e. a ‘tin kit’ or a ‘tile kit’, and the number of panels that the kit is for, e.g., a ‘6 (or 8) panel tin kit’. The rails are packaged separately from the other boxed components. The Respondent says that this is significant and that if there is a ‘kit’, it comprises the other components packaged together in a cardboard box. The Applicant contends that the rails are part of the system or kit – they are imported at the same time and in the precise quantity necessary for the number of systems or kits imported. The Applicant further contends that the only reason that the rails are not physically located in the box with the other components is because of their size and that this should not prevent them from being composite goods.
The cases referred to above indicate that the inspection of the goods should have regard to what the goods were designed for, but that this does not depend on what the importer or exporter say, i.e., the test is objective. The cases also indicate that a visual inspection may not always indicate what the goods were designed for. In this regard, the Tribunal was referred to three pieces of evidence. The first piece of evidence was the commercial invoice accompanying the goods; the second was a price list the Applicant published on its website and the third was a product brochure of the company that manufactured and sold the goods to the Applicant.
The following is an invoice and packing list from Allstar dated 18 December 2018 (T17.2):
Line # Code & Description Unit Qty Req Date Unit Price Ext Price 10 SUNDRY
Mounting ALL STAR 6 Panels Tin Kit-Full Kit Includes Items Below
Each 84 15/01/2019 US$0.0000 US$0.00 20 36055
Mounting ALL STAR 6 Panels Tin Kit (03-SJK01)
Each 84 15/01/2019 US$20.5800 US$1,728.72 240 35002
Mounting ALL STAR Rail 4200mm Pair (03-SJK10)
Each 104 15/01/2019 US$21.5000 US$2,236.00
The fact that a price is allocated to the rails (and separately to the other components, also described as ‘kits’) and no price is allocated to the ‘Full Kit’, suggests that the rails and other components are not a composite good. On the other hand, this document has been drawn up by the exporter, perhaps at the behest of the Applicant, to include a reference to kits. The opinion of the parties is not determinative of the character of the goods.
The Applicant’s price list dated January 2019 (Platinum Price List Jan 2019, Annexure A) indicates that each of the imported goods – the rails and each component – are priced separately and should therefore be treated as separate items. However, the evidence for the Applicant was that despite the separate pricing, the items were in nearly all cases[15] supplied as kits i.e., rails and components and would only ever be supplied separately if there was damage or loss of an item.[16] In a few cases, e.g., if there was an issue with a roof, additional items could be purchased.
[15] Transcript Day 2, 77.
[16] Transcript Day 2, 6.
The third piece of evidence was a brochure prepared by the manufacturer/exporter to demonstrate how the various components fitted together to form a mounting kit or system for solar panels to be installed on different types of roofs (T 14.1). This is perhaps the clearest indicator of the design and purposes of the imported goods. It demonstrates that the rails are designed and manufactured to a specification that makes them only usable for this one purpose.
Consideration: Identifying the Goods
The Respondent identified the goods as comprising rails and various components as follows:[17]
[17] T20.1.
Product
Identification
Tariff Classification
Aluminium rails 4200mm
A hollow profile of aluminium
7604.21.00
Earthing Lug
Other articles of copper
7419.99.00
Splice
Other articles of aluminium
7616.99.00
Mid clamp
Other articles of aluminium
7616.99.90
End clamp
Other articles of aluminium
7616.99.00
L Bracket/Bracket
Other articles of aluminium
7616.99.00
T module
Other articles of aluminium
7616.99.00
T module with bolt
Other articles of aluminium
7616.99.00
Klamp lock
Other articles of aluminium
On that basis, the Respondent determined that although the boxed components did not come within the Dumping Notice, the rails did and were therefore subject to Dumping Duty.
The view of the Tribunal is that this characterisation is not appropriate. The imported goods comprise various items, including rails, that are designed to fit together to form a framework to which solar panels are mounted. A visual inspection may not be sufficient to determine the identity of the goods. However, an informed inspection, taking into account the manufacturer’s brochure, makes clear that the goods are specifically designed and manufactured to be used as a solar panel mounting system or kits in compliance with Australian Standards. To use the language of Re Gissing, ‘the identity of the units is subordinate to the identity of the combination’ (at 145). It follows that the goods are identifiable as more than individual components, namely as a composite good being an unassembled mounting system or kit for solar panels on roofs.
The Respondent points to the fact that the rails are packaged separately to the boxed components.[18] The Applicant accepted that the components other than the rails are packaged in the single cardboard box, with the rails packaged separately within the same shipment because they are too long to fit in the box with the other components.[19] As noted below, the fact that goods are not packaged together is not fatal to the issue of whether they comprise an unassembled good, provided that they are imported at the same time.[20]
[18] Respondent’s Statement of Facts Issues and Contentions [70].
[19] Applicant’s Statement of Facts Issues and Contentions [10].
[20] See discussion of Report 148 at [3.4.3].
An alternative argument for the Respondent was that the imported goods were not capable of being a composite good because the imported goods are not a good on their own and will only be a complete, assembled good when they are mounted on the roof with solar panels attached.[21] The Internal Review Report (T10) relied on by the delegate that made the refund rejection decision in her statement of reasons (in T2) referred to a Precedent[22] dated 2013 that set out the requirements for a shipment of goods to be treated as ‘complete unassembled aluminium structures’ for the purposes of tariff classification, 7610.90.[23] That Precedent states that this would not include ‘goods that are simply rails, with or without fastening devices, used to attach [e.g. solar panels] to an existing structure’. There are several reasons why this Precedent does not assist the Tribunal – first, it is dealing with whether goods constitute a ‘structure’ for tariff classification purposes, not with how goods should be identified for the purposes of the Dumping Notice. Secondly, it is only concerned with whether goods come within Heading 7610.90 (discussed below). Thirdly, it is not authoritative, as it is the opinion of Border Force rather than a legal precedent.
[21] Respondent’s Statement of Facts Issues and Contentions [49].
[22] Precedents are public advice products issued by Australian Border Force and are described as being ‘specific to a tariff classification’. As such they express the opinion of Border Force and are similar to Public Rulings issued by the Commissioner of Taxation. A list of Precedents can be found at:
[23] Tariff Classification 7610.90 deals with ‘Aluminium Structures’.
The Respondent referred the Tribunal to two cases involving the importation of bicycle parts. In Re Progress Metal Works Pty Ltd and Collector of Customs [1984] AATA 22, the importer imported 3472 sets of components that would make up 3472 bicycles. The Tribunal took the view that the unassembled items had the essential character of complete bicycles. This resulted in the goods being subject to duty as bicycles at a higher rate than would have applied to the separate items. By contrast, the decision in Re Bicycle Corp supported a finding that the imported goods should not be viewed as a composite good but rather as separate items.[24] In that case, bicycle parts, less one or both wheels, were not viewed as a composite good but rather as separate parts for the purposes of tariff classification.
[24] (1989) 20 ALD 655.
In Re Bicycle Corp, a Full Tribunal (at [24]) held that the imported goods ‘did not have the essential character of bicycles as:
No locomotion was possible, they were not vehicles; and
They lacked a wheel or both wheels’.
In the case before the Tribunal, the goods have the essential character of a mounting system or kit to be installed on roofs on which solar panels are subsequently installed. The mounting system and the solar panels are two separate and independent goods, despite the fact that they will be used together.
Having determined that the rails and boxed components comprise a composite good, it is still necessary to see if the goods fall within the Notice.
Second step: Interpretation of the Notice
Having identified the goods, the Tribunal must also consider whether the Dumping Notice issued on 21 October 2010 applies so that Dumping Duty is imposed on the imported goods. A preliminary matter concerns the rules for interpretation of a Dumping Notice which is a form of delegated i.e. secondary legislation. The parties were generally in agreement on the issue of interpretation, namely, that delegated legislation generally attracts the same principles of interpretation as primary legislation, subject to one proviso, that is where the delegated legislation is expressed in less formal language it may be appropriate to adopt a less formal approach to interpretation.[25] This suggests that where the delegated legislation is in the form of a legislative instrument the approach adopted may be more akin to interpretation of primary legislation. Where, as here, the delegated legislation may not have been drafted by skilled legislators, a more informal approach may be appropriate.
[25] Dennis Pearce & Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 5th ed, 2017) [30.3].
There is one additional complication in the case of the Dumping Notice in this case – the Notice itself does not identify the goods that fall within its scope, referred to as the Goods Under Consideration (GUC). It is therefore necessary to have regard to the Report prepared for the Minister by Customs.[26] In fact, the Report is published with the Notice suggesting that the Report may be part of the Dumping Notice, or at least should be read with it in the same way that an Explanatory Memorandum might be.[27] It is less clear what the status is of preliminary documents relating to the investigation that led to the Dumping Notice.
[26] Report 148.
[27] Section 15AB Acts Interpretation Act 1901 (Cth).
As noted above, the Dumping Notice issued on 21 October 2010 is authorised by s 269TG of the Customs Act. Such Notices have a sunset clause so that they expire after 5 years (s 269TM) unless the Minister declares that she/he has decided to secure the continuation of the anti-dumping measures currently applying to aluminium extrusions exported to Australia from China under s 269ZHG. This occurred in 2015 (Anti-Dumping Notice No 2015/125, 20 October 2015) and in 2020 (Anti-Dumping Notice No 2020/103, 12 October 2020).
The Dumping Notice states that the Minister has ‘considered, and accepted, the recommendations of Customs and Border Protection, the reasons for the recommendations, the material findings of fact on which the recommendations are based and the evidence relied on to support those findings in REP 148’. It also states that the Minister is satisfied as to the various matters set out in s 269TG (of the Customs Act), and so declares that s 8 (of the Anti-Dumping Act) applies to ‘the goods’ and to ‘like goods’.
There are 4 questions that must be considered:
(i) whether the imported goods come within the notion of ‘the goods’ for the purposes of the Notice;
(ii) whether the imported goods are ‘like goods’ for the purposes of the Notice;
(iii) whether the goods must fall within the relevant tariff classifications to come within the Notice; and
(iv) whether the goods come within the exception to the Notice.
(i) Whether the imported goods come within the notion of ‘the goods’ for the purposes of the Notice
The goods that are the subject of the Dumping Notice are not clearly identified, but the introduction to the Notice, and indeed the Report (Report 148), refers to ‘the goods.’ The introduction states that Customs has completed its investigation into the alleged dumping of ‘certain aluminium extrusions (the goods), classified to tariff subheading 7604 00 00, 7608 00 00 and 7610 00 00, in Schedule 3 of the Customs Tariff Act 1995 exported to Australia from the People’s Republic of China.’
The Dumping Notice itself contains no other description of the goods. The Notice is published as part of a Report by the Australian Customs and Border Protection Service (Customs and Border Protection)[28] published on 10 April 2010 (Report 148). The Report followed an investigation announced in June 2009 on the application of Capral Ltd, and the release of an Issues Paper in November 2009.[29] The goods the subject of the investigation were described as follows:
The goods the subject of the application (the goods) are aluminium extrusions produced via an extrusion process, of alloys having metallic elements falling within the alloy designations published by The Aluminum Association commencing with 1, 2, 3, 5, 6 or 7 (or proprietary or other certifying body equivalents), with the finish being as extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not worked, having a wall thickness or diameter greater than 0.5 mm., with a maximum weight per metre of 27 kilograms and a profile or cross section which fits within a circle having a diameter of 421 mm, originating in or exported from, the People’s Republic of China.
The notion of goods is therefore fairly wide – it refers to any aluminium extrusions from the Republic of China; falling within various alloy designations, with various finishes, with minimum wall thickness and maximum weight and a profile that fits within a circle having a specified diameter. Presumably the rails considered as a separate item would come within the notion of the goods.
[28] The agency was under the jurisdiction of the Attorney-General's Department from 2009 to 2013, and then transferred to the newly formed Department of Immigration and Border Protection in 2013, until its transformation into the Australian Border Force in 2015.
[29] Australian Customs and Border Protection Service, Trade Measures Issues Paper, Goods Under Consideration - Certain Aluminium Extrusions Exported from the People’s Republic of China, Trade Measures Case 148, 9 November 2009.
(ii) Whether the imported goods are ‘like goods’ for the purposes of the Notice
The Dumping Notice declares that dumping duty also applies to ‘like goods’. The term ‘like goods’ is defined in the Customs Act as follows (s 269T):
“like goods”, in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration.
The term ‘like goods’ is relevant for two purposes under the Act:
(a) in determining whether to impose dumping duty, the investigation and then the Minister must determine whether there is an Australian industry producing like goods. Without this requirement, logically there could be no material harm to the Australian industry caused by imports and therefore any duty imposed would not be a true dumping duty but rather a tariff; and
(b) if measures are imposed the Minister may declare that the dumping duty applies to goods which are substantively the same, but which may be superficially outside the description in the Notice.
This second purpose is the one of concern in this case. A number of cases have considered the definition of ‘like goods’ but in the context of the first purpose e.g., Marine Power and GM Holden. In these cases, the phrase has been given a wide meaning – it requires a comparison and is not limited to the same or identical goods. Despite the different context, a similar approach should be adopted in relation to the scope of the Notice. If the rails are viewed as separate items they would also fall within the notion of like goods.
(iii) Whether the goods must fall within the relevant tariff classifications to come within the Notice
One of the issues that arose during the hearing was whether the goods fall within the relevant tariff classifications. Report 148 states:
The goods may be classified to tariff subheadings 7604.10.00 (statistical code 06),
7604.21.00 (statistical codes 07 and 08), 7604.29.00 (statistical codes 09 and 10),
7608.10.00 (statistical code 09), 7608.20.00 (statistical code 10), 7610.10.00 (statistical code 12) and 7610.90.00 (statistical code 13) in Schedule 3 of the Customs Tariff Act 1995.
(emphasis added)
The permissive language of the reference suggests that it is not a requirement of the Notice applying that the goods fall within one of the classification codes. This is reinforced by the specific reference in the Notice to ‘like goods’ which indicates a wider coverage. Therefore, it is not necessary for the goods to fall within one of the relevant tariff classifications for them to be considered within the scope of the Notice.
(iv) Whether the goods come within the exception to the Notice
A further crucial issue is whether the exception referred to in the Notice applies. The Report that led to the Notice clearly envisaged that not all aluminium extrusions would be within scope. It stated:
The GUC include aluminium extrusion products that have been further processed or fabricated to a limited extent, after aluminium has been extruded through a die. For example, aluminium extrusion products that have been painted, anodised, or otherwise coated, or worked (eg precision cut, machined, punched or drilled) fall within the scope of the goods.
The GUC do not extend to intermediate or finished products that are processed or fabricated to such an extent that they no longer possess the nature and physical characteristics of an aluminium extrusion, but have become a different product. (emphasis added)
Report 148 goes on to set out Customs’ view on what is not included in Goods Under Consideration:
3.4. Interpretation of the GUC
There is potential variation in interpretation of the description of the GUC, particularly in relation to the level of fabrication or value-adding that may occur before goods are considered to exceed its scope. Understandably, Australian industry members have advocated a broader approach while other interested parties have advocated a narrower approach.
In view of the potential variation and divergence of views on this issue, Customs and Border Protection published issues paper 2009/148 to provide clarification of, and to invite submissions on, the scope of the goods that Customs and Border Protection would examine for the purposes of this investigation.
3.4.1. Issues paper 2009/148
Issues paper 2009/148 stated, inter alia, that:
“The GUC include aluminium extrusion products that have been further processed or fabricated to a limited extent, after aluminium has been extruded through a die. For example, aluminium extrusion products that have been painted, anodised, or otherwise coated, or worked (e.g. precision cut, machined, punched or drilled) fall within the scope of the goods.”
“… the goods do not extend to intermediate or finished products that are processed or fabricated to such an extent that they no longer possess the nature and physical characteristics of an aluminium extrusion, but have become a different product.”
The table below appeared in issues paper 2009/148. The table illustrated Customs and Border Protection’s proposed interpretation of the GUC, with reference to extrusion variants.
< GUC >
< Non-GUC >
1
2
3
4
5
6
7
Aluminium extrusions Aluminium
extrusions
with minor
workingAluminium
extrusions
that are parts
intended for
use in
intermediate
or finished
productsAluminium
extrusions
that are
themselves
finished
productsUnassembled
products
containing
aluminium
extrusions,
e.g. ‘kits’ that
at time of
import
comprise all
necessary
parts to
assemble
finished
goodsIntermediate or
partly
assembled
products
containing
aluminium
extrusionsFully assembled
finished products
containing
aluminium
extrusionsExamples
Mill finish,
painted,
powder
coated,
anodised, or
otherwise
coated
aluminium
extrusionsPrecision cut,
machined,
punched or
drilled
aluminium
extrusionsAluminium
extrusions
designed for
use in a door
or windowCarpet liner,
fence posts,
heat sinksShower frame
kits, window
kits,
unassembled
unitised curtain
wallsUnglazed
window or door
framesWindows, doors (emphasis added)
Customs and Border Protection received submissions to issues paper 2009/148 from [various parties] …Each of these submissions argued for some level of variation to Customs and Border Protection’s interpretation of the description of the goods. None of the arguments raised in these submissions persuaded Customs and Border Protection to alter its proposed approach at the time of publishing SEF 148.
3.4.2. Submissions to SEF 148
In its submission titled Applicants Response to Customs Statement of Essential Facts (SEF 148), dated March 2010, Capral set out its detailed views on Customs and Border Protections’ approach to the description of the GUC. Capral disagreed with the descriptions at categories 5 and 6 of the table reproduced above.
3.4.3. Category 5 – unassembled products
Customs and Border Protection has adopted the word “kit” as a convenient way to describe an unassembled product that comprises all necessary parts to assemble finished goods. Its approach is that such goods should be considered finished goods rather than extrusions and, thus, are not the GUC. (emphasis added)
Capral acknowledged that goods exported as part of a kit “may constitute another final product … and therefore may not be goods under consideration”. Customs and Border Protection therefore considers the only remaining area of contention in this respect is what Capral argues should define a kit. Customs and Border Protection does not seek to define kits as such, but rather to describe the unassembled products it refers to in category 5.
In its submission, Capral defined a kit as being “complete … packaged separately for sale to, and assembly by, final end users”, and/or “components being imported comprises [sic] all the parts necessary to make the assembled goods”. ….
Customs and Border Protection does not agree with Capral’s definition of what constitutes a kit. Specifically, it does not agree that a kit must be packaged separately for sale to, and assembly by, final end users. Certain unassembled products such as unitised curtain wall do not lend themselves to packaging as described. Further, the ultimate end use and end user are not apparent at the time of importation and both factors are irrelevant to the classification of the goods at the time of importation.
Customs and Border Protection’s approach circumscribes the ability to claim aluminium extrusions as part of a kit by requiring that all elements of a kit must be imported at the same time (in order to be considered a finished good). (emphasis added)
The Applicant argues that the Dumping Notice does not apply to the goods on the basis that they are ‘unassembled products containing aluminium extrusions’ – an apparent reference to Item 5 in the Table in 3.4 of Report 148. However, the Applicant also contends that:
When sections 3.1 to 3.5 of Report 148 are read as a whole, and understood in the legislative context which makes clear that it is necessary to identify the “goods under consideration” with some particularity, it is clear that the Notices do not apply to goods that are “unassembled products containing aluminium extrusions”.[30]
[30] Applicant’s Statement of Facts Issues and Contentions [25].
The Respondent contends that Item 5 does not contain a separate exception and that the only exception is in para 3.2, i.e. intermediate or finished products that are processed or fabricated to such an extent that they no longer possess the nature and physical characteristics of an aluminium extrusion, but have become a different product. On that basis, the Respondent did not accept that characterising the goods as a ‘kit’ would be sufficient to attract the exception. The Tribunal accepts that there is no specific exception for a kit, but that identification of a system or kit may be relevant to determining whether the goods are composite goods, or separate goods for the purposes of the Dumping Notice. Further, the Respondent contends that the imported goods have not been ‘processed or fabricated’ in the way described.
Consideration
The Tribunal accepts that the Dumping Notice would apply to the rails if they were the only items being imported. However, the process of identification of the rails and boxed components as a system or kit makes it necessary to consider whether the Dumping Notice can apply to the goods so identified. The Tribunal takes that view that in interpreting what is included in the goods under consideration, and what is not included in the goods under consideration, it is necessary to have regard to all of the matters set out in paragraphs 3.1 to 3.4 of Report 148. The relevant processing or fabricating is in the preparation of the system or kit including the rails and various components. Item 5 sets out one of the ways in which the exception in paragraph 3.2 can be satisfied. As discussed above, the view expressed in Report 148 accompanying the Dumping Notice was that all of the goods being imported at the same time, even though they are not packaged together, are capable of being viewed as a different, finished good. As noted above, Report 148 stated that the GUC “do not extend to intermediate or finished products that are processed or fabricated to such an extent that they no longer possess the nature and physical characteristics of an aluminium extrusion, but have become a different product”. On that basis, the Tribunal finds that the system or kits comprising the rails and other boxed components are not within the scope of the Notice.
Appropriate Tariff Classification
The main issue to be determined by the Tribunal is whether dumping duty is payable under the Dumping Notice. As indicated, the Tribunal does not believe that it is. Having determined that the tariff classification is not relevant to whether the imported goods come within the Notice, it is not strictly necessary to determine the appropriate tariff classification under the Customs Tariff Act 1995 (Cth). However, as both parties made submissions on the issue, it is appropriate to say something on this matter. However, the Tribunal notes that the only significance of classification in this matter, is whether a particular classification would result in the Dumping Notice applying. The Tribunal is not concerned with classification for the purposes of the Tariff Act.
The parties were in agreement that the following headings in Schedule 3 of the Tariff Act are in contention for classification of the Rails:
7604 ALUMINIUM BARS, RODS AND PROFILES 7610 ALUMINIUM STRUCTURES (EXCLUDING PREFABRICATED BUILDINGS OF 9406) 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 7616 OTHER ARTICLES OF ALUMINIUM 8302 BASE METAL MOUNTINGS, FITTINGS AND SIMILAR ARTICLES SUITABLE FOR FURNITURE, DOORS, STAIRCASES, WINDOWS, BLINDS, COACHWORK, SADDLERY, TRUNKS, CHESTS, CASKETS OR THE LIKE; BASE METAL HAT-RACKS, HAT-PEGS, BRACKETS AND SIMILAR FIXTURES, CASTORS WITH MOUNTINGS OF BASE METAL; AUTOMATIC DOOR CLOSERS OF BASE METAL
Solar Juice contends that the appropriate classification is 8302 and that this classification is not referred to in the Dumping Notice, this is an alternative reason for saying that the Notice does not apply.
The Respondent contends that the goods are classified under 7604, or potentially 7610 and not under 8302. But in any event, the goods the subject of the Dumping Notice are not restricted to classifications 7604, 7608 or 7610, and that even if classification 8302 applies the Notice could still apply as it refers to like goods.
For the reasons discussed at [66]-[67], the Tribunal accepts that the Dumping Notice is not restricted to any particular tariff classification.
As noted above (at [61]) the Tribunal accepts that if the rails are viewed as separate items they would fall within the notion of like goods and so be subject to the Dumping Notice. However, the Tribunal has concluded that the goods imported by Solar Juice are not separate items but rather composite goods, namely systems or kits for tin and tile roofs, and so not within the scope of the Notice. It is therefore not necessary to determine the appropriate tariff classification.
CONCLUSION
The Tribunal finds that the imported goods are not subject to the relevant Notice as they are composite goods and not separate items, the composite goods being mounting systems or kits for tin and tile roofs to which solar panels are to be installed. The Tribunal also finds that the imported goods come within the exception to the Notice being ‘unassembled products containing aluminium extrusions’. The Applicant is entitled to a refund.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Keith James and Senior Member Professor Ann O’Connell,
...[sgd]....................................................................
Associate
Dated: 24 March 2022
Dates of hearing: 1, 2 and 3 December 2021 Counsel for the Applicant: Ms Zoe Maud Solicitors for the Applicant: Rigby Cooke Lawyers Advocate for the Respondent: Mr Roger Northcote Solicitors for the Respondent: Comptroller-General of Customs ANNEXURE A
Applicant’s Platinum Price List January 2019
Mounting Components
Mounting Rail & Rail Splicer
Part No.
Qty/Box
UOM
Price EX GST
Mounting ALL STAR Rail 3200mm Pair (03-ASL43-AS-R-05)
35000
Pair
$36.00
Mounting ALL STAR Rail 4200mm Pair (03-ASL01-AS-R-01)
35002
Pair
$45.00
Mounting ALL STAR Rail Splicer Pair (03-ASL16-AS-RS-03)
35005
50/200
Pair
$3.99
Mid & End Clamps
Part No.
Qty/Box
UOM
Price EX GST
Mounting ALL STAR Mid Clamp 35/40mm Silver (03-ASL06-AS-MC-03)
35010
100/400
Each
$0.91
Mounting ALL STAR Mid Clamp 35/40mm Black (03-ASL56-AS-MC-01 (BLACK))
35010B
100/400
Each
$0.91
Mounting ALL STAR Mid Clamp 35/40mm Silver w/Spr&Earthing (03-SJP02)
35011
100/400
Each
$0.98
Mounting ALL STAR Mid Clamp 35/40mm Black w/Spr&Earthing (03-SJP06)
35011B
100/400
Each
$1.05
Mounting ALL STAR Mid Clamp 46mm Silver (03-ASL46-AS-MC-02)
35015
100/400
Each
$0.89
Mounting ALL STAR Mid Clamp 46mm Black (03-ASL81-AS-MC-02 (BLACK))
35015B
100/400
Each
$0.89
Mounting ALL STAR Mid Clamp 46mm Silver w/Spr&Earthing (03-SJP04)
35016
100/400
Each
$0.98
Mounting ALL STAR Mid Clamp 46mm Black w/Spr&Earthing (03-SJP08)
35016B
100/400
Each
$1.05
Mounting ALL STAR End Clamp 35/40mm Silver (03-ASL10-AS-EC-01)
35025
100/400
Each
$0.91
Mounting ALL STAR End Clamp 35/40mm Black (03-ASL57-AS-EC-01 (BLACK))
35025B
100/400
Each
$0.91
Mounting ALL STAR End Clamp 46mm Silver (03-ASL50-AS-EC-02)
35030
100/400
Each
$0.91
Mounting ALL STAR End Clamp 46mm Black (03-ASL82-AS-EC-02 (BLACK))
35030B
100/400
Each
$0.91
Roof Mount Interface
Part No.
Qty/Box
UOM
Price EX GST
Mounting ALL STAR Tile Roof Kit (03-ASL17-AS-H-02)
35065
10/40
Each
$5.99
Mounting ALL STAR Tin Roof Kit (03-ASL18-AS-SRH-03)
35070
50/200
Each
$1.65
Mounting ALL STAR Klamp Lock SK7 406 (03-ASL39-AS-SRH-04)
35055
50/200
Each
$2.15
Mounting ALL STAR Klamp Lock S07 700 (03-ASL38-ASH-SRH-01)
35060
10/40
Each
$5.59
Tilt Frames
Part No.
Qty/Box
UOM
Price EX GST
Mounting ALL STAR Tilt Frame Adjustable 10/15 Set (03-ASk52)
35040
25
Each
$10.80
Mounting ALL STAR Tilt Frame Adjustable 15/30 Set (03-ASk51)
35045
8
Each
$13.90
Mounting ALL STAR Tilt Frame Adjustable 30/60 Set (03-ASk53)
35050
20
Each
$16.99
Accessories
Part No.
Qty/Box
UOM
Price EX GST
Mounting ALL STAR Earthing Lug (03-ASL-15-AS-GL-01)
35080
100/400
Each
$2.05
Mounting ALL STAR Earthing Clip (17-ASB04-AS-GC-02)
35075
1000/4000
Each
$0.26
Mounting ALL STAR T Module (03-ASL31-AS-TM-02)
35085
1000/4000
Each
$0.41
Mounting ALL STAR T Module with Bolt (03-ASL32-AS-TM-01)
35090
250/1000
Each
$0.56
3
5
0