Tradesman Technologies Pty Ltd and Comptroller-General of Customs
[2023] AATA 1618
•12 June 2023
Tradesman Technologies Pty Ltd and Comptroller-General of Customs [2023] AATA 1618 (12 June 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/3901, 2021/3902, 2021/4775
Re:Tradesman Technologies Pty Ltd
APPLICANT
AndComptroller-General of Customs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:12 June 2023
Place:Perth
The decision of the Respondent made on 2 June 2021 to reject the Applicant’s application for a refund of the dumping duty paid on the drilled rectangular hollow sections, imposed pursuant to the Customs Tariff (Anti-Dumping) Act 1975 (Cth), is set aside and substituted with the decision that the dumping duty paid on the drilled rectangular hollow sections be refunded.
...[sgd].......................................................
Deputy President Boyle
CATCHWORDS
CUSTOMS - decision to reject the Applicant’s application for a refund of dumping duty paid in respect of drilled rectangular hollow structures pursuant to the Customs Tariff (Anti-Dumping) Act 1975 – whether drilled rectangular hollow structures constitutes a structure for the purposes of Customs Act 1901 classifications – whether dumping duty payable – rectangular hollow structures fall within classification 7308 9000 – reviewable decision set aside and substituted
LEGISLATION
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) S 42(C)
CUSTOMS ACT 1901 (CTH) SS 163(1)(B); 269T; 269TG; 269TJ(2)
Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss 8; 10;
Customs Tariff Act 1995 (Cth) Schedules 2 and 3
Customs Regulation 2015 (Cth) regs 102–112; schedule 6.
CASES
BLACKWOOD HODGE (AUSTRALIA) PTY LTD V COLLECTOR OF CUSTOMS (1980) 3 ALD 38
COMPTROLLER-GENERAL OF CUSTOMS V PHARM-A-CARE LABORATORIES PTY LTD [2020] HCA 2
COMPTROLLER-GENERAL OF CUSTOMS V SMOOTHFLOW PTY LTD [2021] FCA 144
CHINESE FOOD AND WINE SUPPLIES PTY LTD V COLLECTOR OF CUSTOMS (VIC) (1987) 72 ALR 59
GM HOLDEN LTD V COMMISSIONER OF THE ANTI-DUMPING COMMISSION AND OTHERS [2014] FCA 708
MARINE POWER AUSTRALIA PTY LTD V COMPTROLLER-GENERAL OF CUSTOMS (1989) 89 ALR 561
NISSHO-IWAI (AUSTRALIA) PTY LIMITED AND COLLECTOR OF CUSTOMS [1978] AATA 6; (1978) 1 ALD 125
PILKINGTON (AUSTRALIAN) LIMITED (ACN 006 904 052) V MINISTER OF STATE FOR JUSTICE & CUSTOMS & ANOR [2002] FCAFC 423
RE TRIDON AND COLLECTOR OF CUSTOMS (1982) 4 ALD 615
Sanwa Pty Ltd and Comptroller-General of Customs [2019] AATA 5166
Smoothflow Australia Ltd and Comptroller-General of Customs [2020] AATA 1890
Solar Juice Pty Ltd and Comptroller-General of Customs [2022] AATA 550
TIME CONSULTANTS V COLLECTOR OF CUSTOMS (1987) 76 ALR 313
VERNON-CARUS AUSTRALIA PTY LTD AND THOMAS CREEVEY AND ASSOCIATES V COLLECTOR OF CUSTOMS [1995] FCA 1283
SECONDARY MATERIALS
Report to the Minister No. 177: Certain Aluminium Extrusions Exported to Australia from the People’s Republic of China; 15 April 2010
REASONS FOR DECISION
Deputy President Boyle
12 June 2023
THE APPLICATIONS
The following applications for review were lodged by the Applicant on 9 June 2021.
A.Application 2021/3091: relating to a decision of the Respondent made on 2 June 2021 to reject the refund of dumping and/or countervailing duty paid in respect of pedestrian grab rails;
B.Applications 2021/3092 and 2021/4775: relating to a decision of the Respondent made on 2 June 2021 to reject the refund of dumping and/or countervailing duty paid in respect of various street sign posts and poles:
Prior to the commencement of the hearing of the applications on 20 and 21 October 2022, the parties reached agreement on certain aspects of the decisions under review. Pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) the following decisions were made on 19 and 20 October 2022:
A.Application 2021/3091: The Tribunal sets aside the decision under review and substitutes a decision that the pedestrian grab rails the subject of import declaration "ACNRRRAEW" are not subject to anti-dumping duty or countervailing duty.
B.Applications 2021/3092 and 2021/4775: The Tribunal affirms the decisions under review, only insofar as the decisions refuse to grant a refund or refunds of dumping duty and countervailing duty paid for circular undrilled tubes.
(Emphasis added).
BACKGROUND
These applications require determination of whether anti-dumping measures in the form of special duties of Customs (Dumping Duty) imposed by the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (Anti-Dumping Act) on hollow structural sections (HSS), exported from China, apply to certain steel tube products imported by the Applicant.
The Respondent says that the measures were imposed by Ministerial notices signed on 12 June 2012 (the dumping notice) in respect of certain HSS (the “goods under consideration” or GUC) and “like goods”.
By the decisions under review the Respondent refused applications to refund Dumping Duty paid by the Applicant on three shipments of steel tube products imported from China (imported goods).
The Respondent claims that the imported goods are subject to Dumping Duty.
The Applicant denies that certain of the imported goods are within the category of pipe or tube subject to Dumping Duty.The Applicant paid the Dumping Duty demanded by the Respondent in respect of three import declarations. The Applicant than applied for a refund of that Dumping Duty.
The Respondent rejected the refund applications.THE ISSUE FOR DETERMINATION
Because of the decisions made by consent on 19 and 20 October 2022 (see [2] above), the only issue remaining for determination is whether the HSS, other than circular undrilled tubes (i.e. the drilled rectangular hollow sections or drilled RHS) are subject to Dumping Duty. Determination of that issue will require consideration of whether the drilled RHS are within the scope of the dumping notice, which requires determination of whether the drilled RHS are GUC under the dumping notice or are otherwise “like goods” to the GUC.
LEGISLATIVE FRAMEWORK
The Respondent’s Statement of Facts and Contentions (Respondent’s SFC) referred to an overview of the anti-dumping tariff system taken from Solar Juice Pty Ltd and Comptroller-General of Customs.[1] While the Applicant seeks to distinguish certain aspects of Solar Juice, the Applicant’s reply to the Respondent’s SFC did not take issue with the description of the Australian anti-dumping tariff system in that case, which was as follows:
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 [sic] Agreement that established the World Trade Organisation (WTO).
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.
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).
[1] [2022] AATA 550 at [20].
Section 269TG of the Customs Act 1901 (Cth) relevantly provides:
(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.
Section 269TJ(2) of the Customs Act relevantly provides:
(2) Where the Minister is satisfied, as to goods of any kind that:
(a) a countervailable subsidy:
(i) has been received in respect of goods the subject of the application that have already been exported to Australia; and
(ii) may be received in respect of like goods that may be exported to Australia in the future; and
(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is being 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 10 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 269T of the Customs Act defines “like goods” as follows:
"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.
Section 163(1)(b) of the Customs Act relevantly provides that refunds of duty may be made “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”.
The Customs Regulation 2015 (Cth) relevantly prescribe such circumstances and conditions in regs 102–112. The claimed refund circumstance, and the only refund circumstance that could potentially apply in this matter, is the circumstance prescribed by item 6 of the table in sch 6 of the Customs Regulation which is:
Duty has been paid on goods because of manifest error of fact or patent misconception of the law.
The dumping notice, Report 177 and the GUC
The following summary of the relevant report and dumping notice was set out in the Respondent’s SFC. It was not contested by the Applicant.
The dumping notice was issued by the then Minister for Home Affairs on 12 June 2012 pursuant to s 269TG and s 269TJ of the Customs Act. The relevant legal effect of the dumping notice is that sections 8 and 10 of the Anti-Dumping Act are declared to apply to “the goods” and “like goods” exported to Australia from China after the notice was published. In other words, Dumping Duty must be collected and paid on the GUC and like goods.
A copy of the dumping notice is in the public report of the investigation: Report to the Minister No. 177: Certain Aluminium Extrusions Exported to Australia from the People’s Republic of China; 15 April 2010 (Report 177). The dumping notice stated that:
the Australian Customs and Border Protection Service has completed its investigations into the [alleged dumping and subsidisation] of certain hollow structural sections (the goods) classified to tariff subheadings 7306.30.00,… 7306.61.00 … and 7306.69.00, in Schedule 3 of the Customs Tariff Act 1995
but does not otherwise identify “the goods”. Further details are provided in Report 177, referred to in the dumping notice.
The dumping notice stated that the Minister accepted the recommendations, reasons for the recommendations, and material findings of fact set out in Report 177. That included the findings regarding what the GUC were.
Report 177 in section 3.2 describes the GUC in the investigation, and therefore for the dumping notice, as follows:
The goods the subject of the application (the goods) are:
certain electric resistance welded pipe and tube made of carbon steel comprising circular and non-circular hollow sections in galvanised and nongalvanized finishes. The goods are normally referred to as either CHS (circular hollow sections) or RHS (rectangular hollow sections). The goods are collectively referred to as HSS (hollow structural sections). Finish types for the goods include in-line galvanised (ILG), pre-galvanised, hotdipped galvanised (HDG) and non-galvanised HSS.
Sizes of the goods are, for circular products, those exceeding 21mm up to and including 165.1mm in outside diameter and, for oval, square and rectangular products those with a perimeter up to and including 1277.3mm. Categories of HSS excluded from the goods are conveyor tube; precision RHS with a nominal thickness of less than 1.6mm and air heater tubes to Australian Standard (AS) 2556).
The application provides the following information to clarify the nature of the goods.
Finishing
All HSS regardless of finish is included in the application
…
Structural sections
For clarification, the goods the subject of the measures include all electric resistance welded pipe and tube made of carbon steel meeting the above description of the goods, regardless of whether or not the pipe or tube meets a specific structural standard or is used in structural applications.
(Original emphasis.)
THE HEARING
The applications were heard on 20 and 21 October 2022. The Applicant was represented by Mr R Wiese and the Respondent was represented by Mr R Northcote. The only witness to give evidence at the hearing was Mr Timothy Anscombe. Mr Anscombe had provided a witness statement in which he described himself as a business manager employed by the Applicant, whose duties include generally managing the business.
THE PARTIES’ SUBMISSIONS
The Applicant
The Applicant’s Statement of Facts and Contentions (Applicant’s SFC), insofar as it is relevant to the drilled RHS, was to the following effect:
(a)The Applicant is an importer of steel products used in road traffic structures such as sign posts and pedestrian grab rails. In 2015 and 2016, the Applicant imported certain goods into Australia which the Respondent contends are subject to Dumping Duty. The Applicant denies that the drilled RHS are of the category of pipe or tube subject to Dumping Duty.
(b)The Applicant paid the Dumping Duty demanded by the Respondent in respect of three import declarations. The Applicant then applied for a refund of that Dumping Duty paid. The Respondent rejected the refund applications.
(c)The goods the subject of the import declarations (in relation to which the Respondent claims Dumping Duty is payable) were:
(i)Grab rails (no longer in dispute: see [2A] above);
(ii)yellow powder coated pre-galvanised rectangular tube with holes drilled in specified locations (lengths 1.6m, 3.2 m, 3.4 m, 3.6 m and 3.8 m);
(iii)circular pre-galvanised tubes (lengths 3.2 m and 3.6 m) (also no longer in dispute: see [2B] above); and
(iv)hot dipped galvanised rectangular tubes with holes drilled in specified locations (lengths 3.6 m and 4.2 m).
(d)In 2017 the Respondent informed the Applicant that it considered that the correct tariff classification of the rectangular sign posts and the steel rectangular sign posts was 7306 6100 (rectangular goods) and, that when so classified, Dumping Duty was payable.
(e)To facilitate a review by the Tribunal of the classification decision, on 13 May 2021 import declarations ACKJEHNKS, ACNRRRAEW and ACRW9HEWT were amended by the Applicant’s customs broker. The key amendment was to change the tariff classification of the sign posts from 7308 9000 to 7306 6100 (rectangular goods). Dumping Duty was calculated and paid on the basis of that classification.
(f)On 13 May 2021 the Applicant requested a refund of the Dumping Duty which was refused by the Respondent on 2 June 2021.
(g)The Applicant’s business is divided into two divisions: (1) the manufacture and supply of tooling, drill bits, core cutters and cutting blades and (2) the procurement and supply of traffic related products such as traffic management and signage components/systems.
(h)The traffic management side of the business primarily supplies goods that have the end use of being used for traffic management structures such as traffic signs and grab rails. The customers of the traffic management business are generally companies that have won tenders to supply Main Roads Western Australia (MRWA).
(i)Where goods are to be used by MRWA, those goods must precisely meet the MRWA specification for those goods.
Tariff classification - identification
(j)Lockhart J (with whom Woodward and Ryan JJ agreed) pointed out in Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (Vic) that:[2]
[2] (1987) 72 ALR 591 at 599
“…the characteristics of the goods, their get-up, colour, decoration, labelling and packaging are all relevant considerations’ for the purposes of identification.”
(k)The characteristics of the goods should be ascertained as they would present themselves to an informed observer. However, there are circumstances where the purpose of the goods, and not merely their objective characteristics, will be relevant.[3]
[3] Citing the full Federal Court held in Vernon-Carus Australia Pty Ltd and Thomas Creevey and Associates v Collector of Customs [1995] FCA 1283 [20].
(l)In the present case, the applicable tariff heading is one that applies to tubes “prepared for use in structures”. This is a heading that focuses not just on the objective characteristics of the goods, but the purpose of those characteristics; that is, whether the goods were prepared for use in structures. It is, therefore, necessary to have regard to the purpose of the imported goods.
(m)In respect of the sign posts, it is contended that individuals with industry knowledge of road structures would identify the goods as street sign posts. The diameter, thickness and length of the sign posts on its own would be sufficient to limit the identification of the goods to sign posts rather than as generic tubing.
(n)Individuals with knowledge of street signs posts used in Perth would clearly recognise the yellow powder coating as preparation of the posts for use as metropolitan street sign posts. Additionally, it would be clear to an informed observer that a pipe with holes drilled into it would have been prepared for a use involving the attachment of items to the pipe.
(o)The Applicant identifies what it says are the interpretation rules under Schedule 3 to the Customs Tariff Act 1995 (Cth) (CT Act) relating to working out the tariff classification under which goods are classified.
(p)The parties agree that the imported goods are classified under Chapter 73 – Articles of iron or steel. The Applicant contends that the correct tariff classification for the sign posts, being the drilled RHS, is heading 7308 9000.
(q)In rejecting the Applicant’s application for a refund of the Dumping Duty, the Respondent made the decision that the drilled RHS should be classified to either heading 7306 3000 or 7306 6100.
(r)The Applicant refers to the Harmonized System Explanatory Notes (HSEN) which are available to be used in the interpretation of Schedule 3 of the CT Act so far as it transposes the text of the Harmonized System Convention.[4]
[4] Citing Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 at [58].
(s)The drilled RHS are correctly classified to heading 7308 for the following reasons:
(i)the reference to “structures” in 7308 should be interpreted widely given that the ordinary meaning of the word and the examples of “structures” provided in the wording of 7308 and the HSEN for 7308;
(ii)the drilled RHS are tubes prepared for use in a structure as:
(1) for sign posts with drilled holes, those holes are multiple and in precise locations, which are only explainable by the use of the goods, with other components, to form a sign post structure;
(2) the (relatively) short length and yellow powder coating of the relevant sign posts identifies them as pipes prepared for use as a sign post; and
(3) the length of the sign posts is irregular and precisely determined by the MRWA’s specifications for sign posts.
(t)The imported goods were manufactured, or prepared, strictly in accordance with the MRWA’s requirements for sign posts.
(u)As imported, the drilled RHS are ready for use as part of a structure, being a road sign.
(v)If the goods can be classified to both heading 7306 and 7308, heading 7308 must be selected as the more specific heading.
(w)
In relation to the meaning of “structure” in heading 7308, the Respondent asserted that “structure” had a restrictive meaning such as “edifice” or “building”.
The restrictive approach of the Respondent is inconsistent with the ordinary meaning of the word “structure”, the terms of heading 7308, recent case law and the HSEN.
(x)The ordinary meaning of “structure” includes items that are constructed from parts. There is nothing in the terms of heading 7308 that supports a very narrow interpretation of the term “structure”. The heading specifically refers to a number of items that would not be considered a building or edifice such as lock-gates, lattice masts, shutters, balustrades, pillars and columns.
(y)The HSEN makes clear that 7308 is intended to cover a wide variety of structures and specifically refers to items that would not be considered a “building” or “edifice”. The HSEN make clear that the overarching characteristics of a heading 7308 structure is that “once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats … by riverting [sic], bolting, welding etc.”
(z)
A completed road sign is a structure within the meaning of the term when used in heading 7308. It is a free-standing solid structure designed to have permanence.
It is constructed of various components such as the sign post, the sign, a cap for the post, a stiffener and various washers, bolts, nuts and rivets. Some road signs include two sign posts. Road signs are fixed permanently in place by way of being set in concrete.
(aa)As imported, the sign posts are not complete structures. They are only parts of structures. To be classified to heading 7308, the drilled RHS at the time of importation must be identified as either part of a structure or a tube prepared for use in a structure.
(bb)HSEN provides clarity as to the meaning of the term “prepared for use in structure” by providing the examples of a tube having been prepared for use in a structure: because it has been “…drilled, bent or notched…”. The HSEN make clear that quite minor workings, such as drilling, will result in a tube having been “prepared for use in a structure”.
(cc)The 2020 Customs Tariff Amendment (Incorporation of Proposal and Other Measures) Act had the effect of amending heading 7308 to specifically exclude from that heading tubes and pipe that require cutting or drilling before use in a structure. This amendment reflects that cutting and drilling are such significant preparations that a tube or pipe requiring this preparation cannot, prior to the preparation, be treated as having been prepared for use in a structure.
(dd)The Applicant cites Smoothflow Australia Ltd and Comptroller-General of Customs [2020] AATA 1890 and the Federal Court judgment in the appeal from that decision.
Summary
(ee)The classification of the imported goods to tariff heading 7306 was based on the incorrect finding that they were not parts of structures or tubes prepared for use in structures.
(ff)Street signs are correctly identified as structures. The correct classification of steel goods prepared for use in structures is 7308 9000. In the circumstances, the decisions rejecting the Applicant’s claims for refund of Dumping Duty were incorrect.
The Respondent
The Respondent’s SFC was to the following effect:
(a)The Respondent agrees that the refunds are payable if the subject goods are not within the scope of the dumping notice. Accordingly, the only issue that the Tribunal needs to determine is whether the subject goods were within the scope of the dumping notice. That requires consideration of whether the subject goods are GUC by the dumping notice or are otherwise “like goods” to the GUC.
(b)The GUC are not limited to subheadings 7306.30.00, 7306.61.00 and 7206.69.00. The reference in the dumping notice to these subheadings is not intended to, and does not limit “the goods”, but only gives an incomplete indication of the goods the subject of the application, considering the space requirements in the dumping notice. The full details of “the goods”, the GUC, are in section 3.2 of Report 177.
(c)Alternatively, “like goods” are not restricted to those subheadings. In Marine Power Australia Pty Ltd v Comptroller-General of Customs,[5] the Federal Court held that the definition of like goods:
[5] (1989) 89 ALR 561 (at bottom of page 573).
“should not be interpreted in a narrow or restricted fashion and is not limited to the “same” goods: see Beseler and Williams, Anti-Dumping and Anti-Subsidy Law 1986, para 4.4.1. It means “goods of the same general category.”
(d)Even if the GUC is restricted to the tariff subheadings mentioned in the dumping notice, that restriction does not apply to like goods. Goods which have all the physical characteristics mentioned in 3.2 of Report 177, but which may not fall within the legal tariff classifications listed in 3.3 of the Report, are like goods because, if they are not “identical in all respects” to the GUC, they must “have characteristics closely resembling those of the goods under consideration.”
(e)The Tribunal in Solar Juice held that the permissive language of the reference (the relevant report stated the goods may be classified to certain subheadings) suggests that it is not a requirement of the dumping notice applying that the goods fall within one of the classification codes. It is not necessary to determine the tariff classification of the subject goods to ascertain whether they are within the scope of the dumping notice.
(f)The goods in question, as imported, clearly comply with each of the requirements of “the goods” as described in section 3.2 of Report 177. On that factual basis, and since the scope of the dumping notice is not legally restricted to any tariff classifications, the subject goods are both “the goods”, i.e. the GUC, and “like goods” within the scope of the dumping notice.
(g)The first task in tariff classification is to objectively identify the goods in their condition as imported, as they would appear to an informed observer. Identification is a practical wharf-side task, made objectively by reference to the characteristics the goods present, and not by reference to the intentions of the importer or the overseas supplier.[6]
[6] Citing Chinese Food and Wine Supplies v Collector of Customs (1987) 72 ALR 591, at 599; Time Consultants v Collector of Customs (1987) 76 ALR 313, at 327. Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (1980) 3 ALD 38 at 56-57)
(h)The identification of goods cannot be controlled by reference to tariff terms, but nevertheless it may be necessary to be aware of the structure of the tariff in order to be able to identify the characteristics of the goods that may be relevant to classification.[7]
[7] Citing Re Tridon and Collector of Customs (1982) 4 ALD 615 at 620, at [15] (ii) and (iii).
(i)In the identification of goods, knowledge of how those who trade in the good describe them is usually relevant but may not be conclusive. All the descriptive terms by which the goods may fairly be identified, may be relevant to the classification of the goods. Identification should not be regarded as a task whereby a single correct identity must be made, if goods identifiable in more than one way that is relevant for tariff classification.[8]
[8] Citing Re Tridon, supra, at 620-621, at [15] (iv), (v), (vi), & [16].
(j)The applicable heading must be determined first. Only after the relevant heading has been determined should the relevant subheadings be determined in accordance with Interpretative Rule (IR) 6 until the applicable 8 figure classification with an attached duty rate is determined.
(k)The Respondent identifies what they say are the relevant IRs which are set out in Schedule 2 to the CT Act. The Respondent sets out headings 7306 and 7308 in Schedule 3 to the TC Act and quotes the definition of the terms “Tubes” and “Pipes” for the purposes of Chapters 74 to 76 in Note 9(e) to Section XV of the CT Act.
(l)The HSEN have long been accepted in Australia as extrinsic aids to the interpretation of the CT Act.[9]
(m)
There is no doubt that the terms of heading 7306 apply to the subject goods.
The subject goods are not “of cast iron” or “seamless” or have an external diameter “which exceeds 406.4 mm”. The subject goods are therefore “other tubes, pipes” which are “welded” and of “steel”, within the terms of heading 7306.
(n)Heading 7306 clearly describes the goods in question and must be the applicable heading, unless heading 7308 applies. Heading 7308 does not apply because none of the subject goods are “tubes … prepared for use in structures” within heading 7308.
(o)The widest possible meanings of “structure” may extend to anything that has been made up from several parts, including machinery. However, that is not the meaning of “structures” in heading 7308.[10]
[9] Citing Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2, 375 ALR 98 at [58] in which the High Court at [59] used the HSEN in construing Interpretative Rule 1.
[10] Citing Nissho-Iwai (Australia) Pty Limited and Collector of Customs [1978] AATA 6; (1978) 1 ALD 125; Comptroller-General of Customs v Smoothflow Pty Ltd [2021] FCA 144 (Smoothflow FC) at [43] and HSEN for heading 7308.
The Applicant filed a reply to the Respondent’s SFC to the following effect:
(a)The application of Dumping Duty on certain steel pipes and tubes is restricted in scope to the tariff classifications mentioned in the dumping notice because the tariff classifications form part of the description of the goods covered by the dumping notice.
(b)The goods in question are not GUC or “like goods”.
(c)The dumping notice has been amended from time to time to alter the scope of the GUC. The manner in which the Minister has elected to alter the dumping notice is consistent with the application of the dumping notice being determined by the tariff classifications specified in the dumping notice. The wording used by the Minister in the legislative instrument amending the dumping notice, together with the form of the amendment, provide the clearest evidence as to whether tariff classifications limit the scope of the dumping notice.
(d)The finding in Solar Juice was based on the permissive language of inclusion of goods in a subheading in the relevant report. That is not the case here as the wording of Report 177 makes clear that the GUC are only those goods classified to heading 7306.30.00, 7306.61.00 and 7306.69.00. That was made clear by the Minister when amending the dumping notice in 2016 that the tariff classifications were pivotal to the goods description.
(e)According to the Applicant, in Sanwa Pty Ltd and Comptroller-General of Customs [2019] AATA 5166 “…the Respondent had previously made submissions to the Tribunal (which the Tribunal accepted) that dumping duties under the HSS Notice were limited to the tariff headings set out in the HSS Notice”.[11]
[11] Applicant’s responsive submissions para 31.
(f)The Tribunal in Sanwa found at [25]:
…On 12 June 2012 the Minister for Home Affairs issued a notice under s 269H of the Customs Act concerning the importation of HSS piping. This notice is integral to the operation of the anti-dumping measures. I consider that Austube should be added as a party to the proceeding because Austube is concerned with the proper administration of the anti- dumping scheme which is dependent upon the correct classification of goods.
And at [34]:
…The administration of the anti-dumping scheme is contingent upon the proper classification of goods.
(g)The Applicant cites the decision in Smoothflow in which, considering the same Notice, the Tribunal observed at [1] that:
…Smoothflow applied under the Customs Act 1901 (Cth) to the Tribunal for review, seeking a determination that the goods were not liable to Customs duty under heading 7306, but rather under heading 7308, which, at the relevant time, was at a lower rate. If the applicant succeeds, it would follow that anti-dumping duty is also not payable.
(h)Solar Juice is distinguishable due to it considering a different dumping notice. It is also contrary to cases that have specifically considered the relationship between tariff classification and the relevant dumping notice.
(i)The legislative instrument that imposes the Dumping Duty is the dumping notice made under section 269TG(1) of the Act. Report 177 is not part of the dumping notice. Report 177 forms part of the background to the dumping notice, but cannot take priority over, or change the words of, the dumping notice. At best, Report 177 is extrinsic material that may, if the requirements of section 15AB of the Acts Interpretation Act 1901 (Cth) are satisfied, be considered in interpreting the dumping notice.
(j)The very sentence that defines “the goods” in the dumping notice refers precisely to the tariff classifications of those goods. As set out in the opening paragraph of the dumping notice, and is abundantly clear from Report 177 and all associated documents, the investigation was only into the dumping of certain goods classified to headings 7306. The Minister expressly referenced the scope of the investigation when defining the goods the subject of the dumping notice. The Minister referenced the scope of the investigation by the tariff classification and statistical codes of the goods investigated.
(k)There is no support of the Respondent’s contention that the tariff classification of the goods is mentioned in either the dumping notice or Report 177 only as a guide. It is an essential characteristic of the GUC.
(l)Acceptance of the Respondent’s contentions would result in the imposition of Dumping Duties on goods classified to tariff heading 7308 in circumstances where there was no finding that such goods had been exported from China at dumped prices and/or that such dumping caused injury to an Australian industry producing like goods. That would be outside the Minister’s power.
(m)The Act requires an investigation which finds dumping of the goods that will be the subject of the Dumping Duty. It is clearly stated in the dumping notice that an investigation was only completed in respect of goods classified to tariff subheadings 7306.30.00, 7306.61.00 and 7306.69.00.
(n)A dumping notice that went beyond the scope of tariff headings 7306.30.00, 7306.61.00 and 7306.69.00 would not be permitted by section 269TG of the Customs Act and would also place Australia in breach of its obligations under the Agreement on implementation of Article VI of the General Agreement on Tariff and Trade 1994.
(o)If the Respondent is correct and the dumping notice is not limited to goods classified to heading 7306, correctly identified the goods fall outside of the scope of GUC regardless of the tariff classification of the goods.
(p)The goods are not “like goods”. The Full Court of the Federal Court in Pilkington (Australian) Limited (ACN 006 904 052) v Minister of State for Justice & Customs & ANOR found:[12]
[12] [2002] FCAFC 423.
“…The assessment of past dumping is by reference to “like goods”, that is goods identical or near identical … to the “goods of any kind”…”
(q)The Respondent’s approach to “like goods” relies on a finding that the description of the GUC is unaffected by the nominated tariff classifications in that description. The tariff classifications form an important part of the goods description and are an essential characteristic of the GUC. By not including tariff heading 7308 in the Notice, the goods description excluded pipe and tube that was part of a structure or had been prepared for use as part of a structure.
(r)A key characteristic of pipes and tubes of 7306 is that they are not generally identifiable as having been prepared for a specific end use. This is consistent with how the goods are described in section 3.2 of Report 177. Those goods are identifiable merely as ‘”CHS”, “RHS” or “HSS”’.
(s)The Respondent has conceded that the grab rails (no longer in issue) and drilled RHS are, respectively, unlikely to have any other use post importation other than as a grab rail or post to support road signs.
(t)Generic pipe and tube classified to heading 7306 and parts of structures classified to 7308 have the following fundamental differences:
(i)the goods are commercially different. Goods prepared of a specific end use compete in a different market to generic tube and pipe which can have unlimited end uses;
(ii)the goods are produced in a different manner. While parts of a structure may use generic tube and pipe as an input into their production, that input undergoes further processing which makes it primarily suitable for use as a structure.
(iii)the Applicant’s customers only have a need for goods that are produced to specific lengths, shapes and drill patterns (all tied to use in a specific structure).
THE EVIDENCE
Mr Anscombe’s witness statement was to the following effect:
(a)The Applicant’s business is, relevantly, divided into the two divisions described in [21(g)] above.
(b)The customers of the traffic management business are either companies that supply goods to MRWA or wholesalers from whom those companies purchase goods for supply to MRWA.
(c)MRWA has precise specifications and standards for traffic infrastructure, such as traffic signs and barriers, which include:
(i)The shape of the pole or tube (circular or rectangle) and whether the pole or tube is straight or curved;
(ii)The material from which the pole or tube is to be made;
(iii)The length, width and thickness of the pole or tube;
(iv)The coating of the pole or tube;
(v)If the pole or tube is to be powder coated, the colour of the coating;
(vi)How the pole or tube is to be cut (saw cut versus sheared);
(vii)If the pole or tube is to be drilled;
(viii)If the pole of tube is to be drilled, the drill pattern.
(d)The Applicant only supplies sign posts and grab rails that precisely meet the MRWA specifications.
(e)Rectangular poles are pre-drilled to provide a safe working environment in Australia and for ease of installation of the traffic signs. At the time of importing the sign post it is not known exactly what signs will be attached to the pole. Additional signs may be attached after installation. For this reason sign posts can have up to 17 predrilled holes. This number of holes can accommodate the various combinations of signs that could be attached.
(f)
MRWA document 8720-0675-8 sets out the hole spacing for rectangular posts.
This spacing is specifically designed to accommodate signs used by MRWA.
(g)Based on these specifications, the Applicant provides a hole spacing diagram to its suppliers. This document sets out to the exact millimetre, the required location of drill holes. Mr Anscombe’s understanding is that the poles imported by the Applicant for use by MRWA are unique to Western Australian traffic management sign posts.
(h)MRWA suppliers must supply goods that precisely meet these specifications. When goods are imported, the Applicant will review the specifications of the delivered product to ensure that the products meet the relevant specifications.
(i)He is not aware of any generic tubes or posts that are supplied powder coated yellow, with pre-drilled holes or cut to specific lengths such as 3.2m or 3.6m.
CONSIDERATION
The parties’ respective outlines of submissions and closing submissions helpfully reduced the argument in this matter to the following competing contentions:
The Applicant
1.The issue is whether the drilled RHS fit within the scope of the dumping notice made by the Minister following investigation 177.[13]
2.In interpreting and applying the dumping notice, there are two different avenues the Tribunal can take that result in the refund being payable:[14]
(a) Find that the dumping notice does not apply to tubes that have been further prepared for a particular purpose, regardless of the tariff classification of the goods; or
(b) Find that the drilled RHS were tubes prepared for use in a structure and are classified to tariff heading 7308.
[13] Applicant’s outline of submissions para 2.
[14] Applicant’s outline of submissions para 3 and closing submissions Transcript at 44.
The Respondent
The drilled RHS are within the terms of the dumping notice because:[15]
(a) they are within the GUC the subject of the dumping notices and as described in Report 177; or
(b) they are “like goods” to the GUC.
[15] Respondent’s outline of submissions para 6.
The Respondent noted that following an anti-circumvention investigation by the Anti-Dumping Authority which resulted in a report to the Minister, the Minister amended the dumping notice on 11 May 2015. The Respondent accepts that a practical result of the amendment to the dumping notice is that GUC are relevantly limited to the tariff classifications mentioned in the amended dumping notice and that the drilled RHS (the only goods now in contention) will not be within the GUC if they are classified under heading 7308 as being “prepared for use in structures”.[16] The Respondent argues that the drilled RHS do not come under heading 7308 because “installed road signs aren’t structures”.[17]
[16] Respondent’s outline of submissions para 25; Respondent’s opening submissions Transcript 20 October 2022 at 13..
[17] Respondent’s opening -Transcript 20 October 2022 at 13.
Heading 7306 in Schedule 3 to the CT Act is as follows:
OTHER TUBES, PIPES AND HOLLOW PROFILES
(FOR EXAMPLE, OPEN SEAM OR WELDED,
RIVETED OR SIMILARLY CLOSED), OF IRON OR
STEEL:
Heading 7308 in Schedule 3 to the CT Act is as follows:
STRUCTURES (EXCLUDING PREFABRICATED
BUILDINGS OF 9406) AND PARTS OF STRUCTURES
(FOR EXAMPLE, BRIDGES AND BRIDGE-SECTIONS,
LOCK-GATES, TOWERS, LATTICE MASTS, ROOFS,
ROOFING FRAMEWORKS, DOORS AND WINDOWS
AND THEIR FRAMES AND THRESHOLDS FOR
DOORS, SHUTTERS, BALUSTRADES, PILLARS AND
COLUMNS), OF IRON OR STEEL; PLATES, RODS,
ANGLES, SHAPES, SECTIONS, TUBES AND THE
LIKE, PREPARED FOR USE IN STRUCTURES, OF
IRON OR STEEL:
Section 6 of the CT Act relevantly provides that:
A reference in this Act to the tariff classification under which particular goods are classified is a reference to the heading or subheading:
Section 7(1) of the CT Act provides that:
The Interpretation Rules must be used for working out the tariff classification under which goods are classified.
The Interpretation Rules are set out in Schedule 2 to the CT Act and relevantly provide:
1. The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:
2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), presented unassembled or disassembled.
(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.
3. When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. …
…
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Do the drilled RHS come within the scope of heading 7306?
Report 177, which gave rise to the dumping notice, described the goods to which the report applied as set out in [19] above. Having so described the relevant goods, para 3.3 of Report 177 stated that:
At initiation, Customs and Border Protection understood the goods to be classified under the following subheadings in Schedule 3…
o7306.30.00 (statistical code...)
o7306.61.00 (statistical code...)
o7306.69.00 (statistical code...)
Since initiation the statistical codes relating to these relevant subheadings have been altered and the goods are now classified under the following tariff subheadings:
The tariff subheadings were not altered but some of the statistical codes changed. As noted at [17] above, the dumping notice, in effect, identifies the goods to which the Dumping Duty is to apply by reference to the findings of Report 177. The dumping notice repeats the references to the specific 7306 subheadings and statistical codes identified in Report 177. As noted at [26] above, the Respondent has, in my view quite rightly, conceded that the dumping notice only applies to goods coming under heading 7306 and like goods.
Mr Wiese for the Applicant in closing referred to certain aspects of heading 7306 as indicating that the GUC could include hollow section that had some post-manufacture addition or work done to it, but which would still come within heading 7306. He pointed to the fact that in the description of the GUC in para 3.2 of Report 177 (see [19] above), having described the goods as both CHS (circular hollow sections) and RHS (rectangular hollow sections) and identified dimensions for CHS and RHS, under the heading “Finishing”, specifies that “CHS with other than plain ends (such as threaded, swaged and shouldered) are also included in the application”. Mr Wiese contended that the fact that the dumping notice sets out the very limited circumstance where further processing is identified and only says it in respect to CHS, can be taken to mean that no other or further processing is permitted, which I take to mean, takes the goods outside the operation of heading 7306.[18]
[18] Transcript at 52.
Insofar as the Respondent argues that drilled RHS, even if it does not come specifically within the scope of heading 7306, is still “like goods”, the Applicant says that that is not the case because, while they may be physically alike on a visual inspection as imported:
…one product can be sold to installers of road traffic infrastructure and we know if it doesn't precisely meet the requirements it won't be accepted and the HSS described in the dumping notice can't be sold for that purpose unless it is further worked.[19]
[19] Transcript 21 October 2022 p 60.
According to the Applicant, while there might be a visual likeness, there is no commercial likeness. The Applicant says that this is an assessment that is consistent with the approach taken by the Court in GM Holden Ltd v Commissioner of the Anti-Dumping Commission and Others,[20] a case to which both parties referred. Mr Wiese referred to [124] of GM Holden, in which the Court found:
The definition in s 269T allows for two alternative assessments. The first is goods which are “identical in all respects”. The second is goods which “although not alike in all respects” have “characteristics closely resembling” the goods which are the subject of the application. It is clear that the statute uses “identical” and “alike” in the same way in this definition. Both nouns focus on a visual or physical comparison. This is reinforced by the use of the word “characteristics” in the alternative assessment, which implies a comparison of the physical characteristics of the goods themselves, including but not limited to their appearance. Characteristics would include, for example, the composition of the goods, the materials used to manufacture them, their outward appearance and the uses for which they were suitable in a commercial and practical sense. This approach is consistent with provisions in Pt XVB such as s 269TC(4)(a) where, as one of the mandatory requirements of the notice the CEO must give upon receipt of an application the CEO proposes to investigate, the “particulars of the goods the subject of the application” must be set out. The use of the term “particulars” implies in my opinion physical features of the goods which can be the subject of a list in a notice such as this.
[20] [2014] FCA 708; 225 FCR 222.
Mr Wiese submitted that in the above passage the Court was saying that, in assessing whether goods are “like goods”, the commercial or practical use to which the goods could be put is a relevant consideration. Or, put another way:[21]
… the step that needs to be taken for the HSS as described in the dumping notice to be transformed into having a functional use the same as the goods that were imported is something that happens after importation and we say it distinguishes it from the goods the subject.
Or put yet another way, the drilling of the holes to specific requirements and the powder coating of the posts after the drilling renders the posts as imported:[22]
A newly identified product that is no longer able to be described by reference to the materials from which it was made. And we say when that occurs, the HSS, which is likely to occur in many instances, it is no longer a like good. It becomes a different category of good. It becomes – whether you call it a fabricated or further worked product and it’s no longer HSS as described.
[21] Transcript 21 October 2022 p 63.
[22] Transcript 21 October 2022 p 66.
That approach, the Applicant argues, is consistent with the drilled RHS being covered by Heading 7308. The Applicant argues that for a product to end up under heading 7308, even in the absence of tariff headings, it has to have undertaken some further working that is not envisaged by the terms of the dumping notice.
Mr Northcote contested the Applicant’s reliance on GM Holden as supporting an argument that the difference in commercial uses to which the drilled RHS could be put compared to RHS generally, took the drilled RHS outside the scope of heading 7306 or “like goods”. While the Court in GM Holden did refer to “…the uses for which they were suitable in a commercial and practical sense”, according to the Respondent, what the Courts take into account in determining whether goods are like goods, is the ways in which the goods are similar, not in looking at what characteristics are dissimilar. There is merit to the Respondent’s argument. Mortimer J at [124] of GM Holden was listing characteristics which could be seen as indicating whether goods were “identical” or “alike” which, she stated, “included but were not limited to their appearance”. It was in that context that her Honour went on to say that these other “Characteristics would include, for example, the composition of the goods, the materials used to manufacture them, their outward appearance and the uses for which they were suitable in a commercial and practical sense”.
Her Honour was not suggesting that for goods to be considered alike, all of the characteristics listed had to be the same or closely resemble the characteristics of the GUC. She was not putting these characteristics forward as a checklist of characteristics all of which had to be matched for goods to be considered like goods. It is, however, fair to say that the more characteristics that do not match, the harder it is to argue that goods are like goods. To that extent, I accept the Applicant’s contention that a difference in the use to which the drilled RHS can be put is relevant, but I do not consider that it is determinative.
In that regard Mr Northcote, while not conceding that the drilled RHS would be useless for any purpose other than as a post for a road sign, conceded that the drilled RHS had:[23]
…been prepared for use in traffic signs. They are very unlikely to be put to any other use. You certainly wouldn’t use them to convey fluid in the because they’ve got holes, but you don’t use rectangular tube in pipe anyway.
…
[23] Transcript 21 October 2022 p 83.
He went on, however, to say that:[24]
I agree that these goods have been specially prepared for use in traffic signs. Practically speaking they have no other use. It’s a special purpose electric resistance welded pipe. It’s a special purposed HSS. If that doesn’t take them outside the scope of the measures and it certainly doesn’t outside the GOC, and it certainly doesn’t take them outside the scope of like goods, which focuses on physical characteristics.
[24] Transcript 21 October 2022 p 84
Mr Northcote contended that while the use to which the drilled RHS could be put may be limited as conceded, that characteristic was not sufficient for the drilled RHS to take them outside the description of GUC or like goods under the dumping notice and Report 177 (see [19] above). The drilled RHS are still identifiable as electric resistance welded tubes within the GUC description, specifically as rectangular tubes or RHS or 78 by 38 by 2.
The Respondent pointed to the fact that the description in the invoices referred to the goods as RHS, as did the MRWA design drawings. They did not identify the goods as drilled RHS, which indicates that, from the point of view of ordering and invoicing and the MRWA drawings, the drilling of holes was not significant. In relation to the relevance of the description of the goods used by those with relevant knowledge, the Respondent referred to Re Tridon at [15].
I agree with the Respondent’s contention that the drilled RHS come within heading 7306. I do not consider that the drilling of holes to meet MRWA’s specifications or even that fact that the drilling of the holes renders the goods unusable for any purpose other than road sign posts, causes them to be something other than GUC or like goods. They still fit the technical, dimensional, physical, manufacturing and treatment description of the GUC as set out in Report 177.[25] They still come within the scope of like goods as that term is defined in the Customs Act (see [11] above) noting that “like goods” should not be interpreted in a narrow or restricted fashion: Marine Power see [22(c)] above.
[25] See [19] above.
Do the goods come within the scope of heading 7308?
As noted at [26] above, the Respondent accepts that if the drilled RHS come within the scope of heading 7308, they are not subject to Dumping Duty. That, in my view, is a correct concession.
The intent and effect of heading 7308 is to distinguish goods that, while they may still be described as HSS, are distinguishable from the more generic goods described in heading 7306. In the case of heading 7308, that distinction is made by reference to the goods having been subjected to some additional process subsequent to manufacture to prepare them for a particular use, specifically, for “use in structures”.
The part of heading 7308 which is relevant in the present case is the words “prepared for use in structures”. These words have two components. The first is that the goods are prepared for use. The Applicant’s case in this regard was set out in paras 67-74 and 78-91 of its SFC and is summarised at [21(s)-(u)] above. The Respondent’s position in its SFC was to the effect that the sign posts were not “’tubes … prepared for use in structures’ within heading 7308”.[26] The Respondent’s position is based on the contention that the road signs as installed are not “structures” rather than on the contention that the drilled RHS are not “prepared for use”.[27]
[26] Respondent’s SFC para 53.
[27] (see [22(n) and (o)] above.
The Applicant refers to the HSEN to support its contention that the drilling and cutting of the goods to specific lengths constitutes preparation for use. Relevantly, the HSEN relating to heading 7308 states that:
The heading also covers parts such as flat-rolled products, “wide flats” including so-called universal plates, strip, rods, angles, shapes, sections and tubes, which have been prepared (e.g. drilled, bent or notched) for use in structures.
It is not disputed that the drilled RHS were prepared by being cut to specific lengths, drilled to specific patterns and then treated, all to comply with MRWA specifications. It was also conceded by the Respondent that the drilled RHS have been specially prepared for use in traffic signs complying with MRWA specifications and, in practical terms, have no other use (see [40] and [41] above).
I am satisfied that the drilled RHS satisfy the first element of this part of heading 7308, namely, that, in their landed form, they have been prepared for a particular use. Such a finding is consistent with the decision in Smoothflow at [23] and [24].
The issue for determination is, therefore, whether that use is “in a structure”. The Macquarie Dictionary defines structure, amongst other things, as:
something built or constructed; a building, bridge, dam, framework, etc.
anything composed of parts arranged together in some way.
The Shorter Oxford Dictionary defines structure, relevantly, as:
A thing which is built or constructed; a building, an edifice. More widely, any framework or fabric of assembled material parts.
As the Applicant contends, the meaning of the word “structure” in heading 7308 is to be construed in the context of the heading as a whole. In that regard, the examples of parts of structures listed in parenthesis are:
bridges and bridge-sections, lock-gates, towers, lattice masts, roofs, roofing frame-works, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns.
The HSEN for heading 7308 includes the following:
Apart from the structures and parts of structures mentioned in the heading, the heading also includes products such as :
… level-crossing gates and similar barriers; frameworks for greenhouses and forcing frames; large-scale shelving for assembly and permanent installation in shops, workshops, storehouses, etc.; stalls and racks; certain protective barriers for motorways, made from sheet metal or from angles, shapes or sections.
While HSEN describes the above listed “products” as being included in heading 7308, given the diverse range of products identified, it is not clear whether the listed examples are included in heading 7308 as being “structures” simpliciter, or whether they are listed as being examples of “parts of structures”. If they are listed as examples of products that are to be treated as “structures” in their own right, then they are a guide to the meaning of the word structure as used in the heading. However, if they are included as examples of products that come within scope of the heading because they fall into the second category, namely “parts of structures”, then they are less helpful in determining a meaning of the term “structures”.
As an example, the Applicant’s counsel referred to the inclusion of “certain protective barriers for motorways” as being supportive of traffic signs being treated as structures. In that regard, a protective barrier installed along the edge of a road is not dissimilar to a stop sign, a give way sign or larger road sign incorporating the drilled RHS. The usefulness of that analogy, however, may be affected by whether protective barriers for motorways are included as being structures on their own right, or as part of a larger structure, namely a motorway. Even if it is the latter, however, the same argument could be applied to a traffic sign which, in the same way that a protective motorway barrier might be treated as being part of a larger structure, namely a motorway, an installed, permanent traffic sign might be treated as being part of the larger structure, namely the road. Either way, the inclusion of barriers for motorways in the HSEN is, in my view, supportive of a construction of heading 7308 as including the drilled RHS.
The other element of the description in HSEN of products or items covered by heading 7308 which is consistent with traffic signs being included in the heading, is the statement that:
This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterised by the fact that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc.
The characteristics identified as indicative of a structure that is covered by the heading are present in an installed traffic sign as described, in my view, accurately, by the Applicant (see [21(z)] above).
The Respondent refers to the Tribunal’s decision in Nissho-Iwa as indicating that the term “structure” in heading 7308 is to be taken to mean “some significant edifice or building constructed on land”.[28] I do not read Nissho-Iwa to make that finding. The following passage from Nissho-Iwa informs the context in which that Tribunal referred to structure being an edifice or building:[29]
[28] Respondent’s SFIC para 56.
[29] 1978) 1 ALD 125 at 128.
Two questions arise: the first is to the meaning of the word "structures", and the second is the significance of the phrase "prepared for use".
As to the first, there is a wide range of dictionary meanings for the word "structure". One would include anything that is constructed or built. A piece of machinery, for example, would be within its scope. On the other hand we understand that in certain scientific language the word "structure" is contrasted with the word "function".
A more restrictive meaning is "edifice" or "building", in the sense of something constructed or built on land. We believe that in the context of the Tariff the restricted meaning last mentioned is the correct one.The wide meaning of anything constructed would include amongst other things all types of machinery. These are dealt with in great detail in other parts of the Tariff.
…
Support for our conclusion is to be drawn from the words in brackets in 73.21. These would be unnecessary if the wide meaning of the word "structures" were adopted. On the other hand, if a structure is an edifice resting or affixed to the land the purpose of the words in brackets would seem to be to ensure that the items mentioned are comprehended in the description. All of them are things or parts of things constructed or connected to the land.
(Emphasis added)
The “words in brackets” in 73.21 to which the Tribunal was referring, are in similar terms and contain many of the examples included in the brackets in heading 7308. Contrary to the Respondent’s submission, the Tribunal did not impose a condition on the edifice or building as having to be “significant”. The point that the Tribunal was making was that, in the context of that tariff classification, structure meant “something constructed or built on land” (see [60] above). Holding that an installed traffic sign is a structure would not be inconsistent with the Tribunal’s view on the meaning of structure in Nissho-Iwa.
The decision of the Tribunal in Smoothflow and the Federal Court’s decision on appeal in Smoothflow FC does not, in my view, support the contention that the structure has to be of any particular size or substance. The passage in Smoothflow FC cited by the Respondent was [43] in which the Court observed:
The noun “structure” describes, for example an object that is built or constructed (eg a building or bridge) or the way in which something has been put together (eg the structure of a building).
That statement does not have the connotations or implications suggested by the Respondent and must be read in light of the facts of that case. The issue in dispute in Smoothflow and Smoothflow FC was whether heading 7308, properly construed, only referred to tubes that are prepared structural elements or ready for use as a structural element of the structure,[30] not whether the building into which the fire water pipes were to be installed was a structure.
[30] Smoothflow FC at [4].
I also do not accept the Respondent’s contention that the explanation in HSEN suggests that the “’structures’ being explained in HSEN for heading are relatively complex, and made up from multiple metal components”.[31] That seeks to suggest that when HSEN refers to structures as being “usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc” it is saying that a structure must be made up from all or some unspecified number of the identified structural sections or components to fall within heading 7308. That is not a correct reading of that explanation. What the explanation is saying is that “usually” a structure would comprise some of the elements identified. In the present case, an installed traffic sign would incorporate tube (the drilled RHS), sheets or plate (the sign itself), it would be bolted and depending on what sort of sign, would potentially include angle sections (bracing) and castings (the cap). A description of the elements of an installed traffic sign was provided by Mr Anscombe at the hearing. His evidence was that an installed traffic sign could have up to 32 components.[32]
[31] Respondent’s SFIC para 58.
[32] Transcript at 22-23; see also [21(z)] above.
For the above reasons, I am satisfied that installed traffic signs incorporating the drilled RHS are structures for the purposes of heading 7308. I therefore find that the drilled RHS are within the scope of heading 7308 and that, as a result, they are not subject to Dumping Duty.
FORMULATION OF THE DECISION
The Applicant identifies the Respondent’s decisions review of which is sought in these applications, as being made on 2 June 2021.[33] The Applicant does not identify the document or documents that comprised that decision. At para 16 of its SFC the Applicant said that the reasons given by the Respondent for its decisions were “FID DOES NOT MEET TARIFF CLASS OF 73089000. REFUND REJECTED.” The Applicant does not identify in which document or documents those reasons were contained. The Respondent similarly does not identify the document or documents which comprise its decision or decisions review of which is sought.
[33] (Applicant’s SFC para 16)
The only document that I can find dated 2 June 2021 is an email from Leanne Feuerherdt addressed to “Jez” which stated:[34]
Hi Jez,
Refunds have been rejected. If you can please advise the Importer, thanks.
Regards
[34] T13/238. The signature block identifies Ms Feuerherdt as being a Senior Border Force Officer within National Refunds Intervention/Trade Compliance, Trusted Trader and Trade Compliance Branch.
Appearing at T12/220-237 is a series of three documents headed “Refunds Approve/Reject”, which state, respectively:[35]
·LINE 1 DOES NOT MEET TARIFF CALSS 73089000. REFUND REJECTED
· LINE 1 and 2 DOES NOT MEET TARIFF CALSS 73089000. REFUND REJECTED
·FID DOES NOT MEET TARIFF CLASS 73099000. REFUND REJECTED
[35] T12/220; T12/226; T12/232
Although it is not stated, I assume that the email of 2 June 2021 referred to in [67] above and the documents appearing at T12/220-237 is/are the document(s) which the parties have treated as the decision to reject the Applicant’s applications for refunds of Dumping Duty and the reasons for that rejection. Again, although it is not identified in those documents,
I assume that the Respondent, or the Respondent’s authorised delegate, was making the decisions to reject the applications for refunds of Dumping Duty under s 163 of the Customs Act. That is suggested by para 23 of the Applicant’s SFC. On that assumption, and as pointed out by the Applicant at para 24 of its SFC, the Tribunal has the power under
s 273GA(1)(haaa) of the Customs Act to review a decision of a collector of customs under s 163 in relation to an application for a refund, rebate or remission of duty.
As was the case in Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust and Comptroller-General of Customs,[36] there was no evidence in the present case that Ms Feuerherdt was delegated to make a decision under s 163 of the Customs Act on behalf of the Respondent (or at least no evidence to which the I was taken). On the same basis that I made the findings in [18]-[21] of Paracella, I find that in this matter I have jurisdiction to review the decisions to refuse the refunds, that the decisions to refuse the refunds were made under s 163 of the Customs Act, and that the review of the decisions is undertaken pursuant to the power to review in s 273GA(1)(haaa) of the Customs Act.
[36] [2021] AATA 1988
The reason that I have set the above matters out in some detail is to properly identify the decision or decisions which are the subject of these applications. The decisions in question, and the decisions which the Tribunal has the power to review, were decisions to refuse the refunds sought. While those rejections may have been based on the drilled RHS being properly subject to Dumping Duty and not coming within heading 7308, the role of the Tribunal is to review the decision or decisions made, which, in this case, were the decisions to reject the applications for refunds of Dumping Duty.
In this regard the decision made by consent under s 42C of the AAT Act referred to in [2A] above may not have technically been in the appropriate form. The decision being reviewed and set aside, was a decision to reject the application for refund. While the Respondent now apparently agrees that the pedestrian grab rails were not subject to Dumping Duty, a statement to that effect is not the same as approving the refund of the Dumping Duty. Given the operation of and powers (and restrictions) under ss 163 and 273GA(1)(haaa) of the Customs Act, the decision that I must make is whether Dumping Duty should be refunded and, if I determine that it should be refunded, to make a decision to that effect.
For the reasons set out above, I have found that Dumping Duty was not payable on the drilled RHS. In the circumstances, the appropriate course is to set aside the decision rejecting the refund and to substitute a decision to approve the refund of Dumping Duty paid on the drilled RHS.
Accordingly, the correct and preferable decision is to set aside the Respondent’s decision to reject the Applicant’s application for refund of Dumping Duty paid on the drilled RHS and substitute a decision that the Dumping Duty paid on the drilled RHS be refunded.
DECISION
The decision of the Respondent made on 2 June 2021 to reject the Applicant’s application for a refund of the dumping duty paid on the drilled RHS, imposed pursuant to the Customs Tariff (Anti-Dumping) Act 1975 (Cth), is set aside and substituted with the decision that the dumping duty paid on the drilled RHS be refunded.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.......[sgd].............................................................
Associate
Dated: 12 June 2023
Date of hearing: 20-21 October 2022 Representative for the Applicant: Mr R Wiese, Director, Customs and Global Trade Law Representative for the Respondent: Mr R Northcote, Principal Lawyer, Department of Home Affairs
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