Suspa Australia Pty Ltd v Collector of Customs

[1990] FCA 641

Re: SUSPA AUSTRALIA PTY LIMITED
And: COLLECTOR OF CUSTOMS
No. G181 of 1990
FED No. 641

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

HEARING

SYDNEY

#DATE 17:10:1990

Counsel for the Applicant: Mr Roberts

Instructed by: Werry Altobelli

Counsel for the Respondent: Mr Webb

Instructed By: Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the proceedings.

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

JUDGE1

This is an appeal from a decision of the General Administrative Division of the Administrative Appeals Tribunal ("the Tribunal") given on 14 March 1990. The question of law involved is the proper construction of a portion of heading 9402 in schedule 3 to the Customs Tariff Act 1987 ("the Act"). The question arises in the following way. The applicant company which operated in Australia in the supply of component parts to manufacturers imported two articles from the Federal Republic of Germany for use in the manufacture of chairs. These were described respectively as "a seat plate" (exhibit B) and a "back rest bar" (exhibit C).

1. The goods were classified by the respondent to sub-heading 9401.90.90 in schedule 3 of the Act. Duty appropriate to this classification was paid by the applicant under protest, it being asserted, inter alia, that the goods fell instead within heading 9402. It was also argued that if the goods were prima facie classifiable under both headings then the general rules for the interpretation of the harmonised system (schedule 2 to the Act) would require that heading 9402 would be the appropriate classification heading as it provides a more specific description of the goods than 9401.

2. The evidence established to the satisfaction of the Tribunal that both items were appropriate for use as parts in the manufacture of chairs which could be elevated and whose seats could swivel and whose back could be reclined with back angle adjustment. The parts imported were used in the manufacture of office chairs but were capable of being utilised in chairs with other uses. Heading 9401 reads as follows: "SEATS (OTHER THAN THOSE OF 9402), WHETHER OR NOT CONVERTIBLE INTO BEDS, AND PARTS THEREOF". Heading 9402 reads as follows: "MEDICAL, SURGICAL, DENTAL OR VETERINARY FURNITURE (FOR EXAMPLE, OPERATING TABLES, EXAMINATION TABLES, HOSPITAL BEDS WITH MECHANICAL FITTINGS, DENTISTS' CHAIRS); BARBERS' CHAIRS AND SIMILAR CHAIRS, HAVING ROTATING AS WELL AS BOTH RECLINING AND ELEVATING MOVEMENTS; PARTS OF THE FOREGOING ARTICLES".

3. Reference should also be made to the following subheadings: 9402.10.00 - dentists', barbers', or similar chairs and parts thereof; 9420.90.00 - other. It is apparent that the two main headings are intended to be mutually exclusive insofar as, if the imported goods can be properly classified under heading 9402, they cannot fall for consideration under heading 9401. The first question for the Tribunal therefore was whether the goods fell under heading 9402. The learned members held that they did not. No occasion therefore arose for the application of the rules in schedule 2, there being no situation where goods fell, prima facie, into either category 9402 or 9401.

4. The applicants submitted both to the Tribunal and to the Court that the items, exhibits B and C, were relevant parts for the "BARBERS' CHAIRS AND SIMILAR CHAIRS, HAVING ROTATING AS WELL AS BOTH RECLINING AND ELEVATING MOVEMENTS". The submission was to the effect that this wording could embrace all chairs which had as attributes the capacity to perform those movements. In particular the type of office chair for which the items were most frequently employed fell within this description. In other words the similarity envisaged by these words was a similarity in respect of these operations.

5. Like the learned members of the Tribunal I am unable to accept this submission. In my opinion the word "similar" relates to the word "barbers'" and not to the movements described. A reading of the whole heading especially in conjunction with the sub-headings satisfies me that it is intended to provide a classification of goods and their parts relating to their use in specialised areas. The first such area is the "medical, surgical, dental or veterinary" area. Furniture (of which examples are given including dentist chairs) and parts of furniture appropriate for use in these areas fall into this classification.

6. The next area is narrower. It relates not to furniture but only to chairs and then only to chairs having the capacity to perform the movements referred to. It is, in my opinion, equally specialised. It relates in the first instance to barbers' chairs having that capacity and to parts thereof and then to "similar chairs" with the same capacity. I am satisfied that this latter phrase means chairs similar in use to barbers' chairs and not to a wider category of chairs having as its distinguishing feature the capacity to make the prescribed movements. Indeed, examples of such chairs are mentioned in the evidence.

7. I am fortified in this view by the wording of sub-headings 9402.10.00 and 9402.90.00. These sub-headings read together are obviously meant to cover all items referred to in main heading 9402. Sub-heading 9402.10.00 refers to all chairs which are comprised in the main heading. It clearly indicates that the word "similar" is to be read with the word "barber's" with the result that parts for use in office chairs cannot be included in the classification. The chairs and parts contemplated in the heading and sub-heading, in my view, are chairs which are specially adapted for use in circumstances where the occupant of the chair for the time being is receiving some sort of treatment, care or attention from some person skilled in the provision of such services.

8. The heading does not apply in general to chairs having movement characteristics referred to. I am satisfied that no error of law by the Tribunal in the interpretation of the heading has been demonstrated. In these circumstances I dismiss the appeal with costs.