Unergy and Comptroller-General of Customs

[2020] AATA 4268

Unergy and Comptroller-General of Customs [2020] AATA 4268 (27 October 2020)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2020/3699

Re: Unergy Australia Pty Ltd

APPLICANT

Comptroller-General of Customs And  

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:27 October 2020

Place:Sydney

The Tribunal does not have jurisdiction to review this application.

.............................[SGD]...........................................

Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – where demand for payment of interim dumping duties and interim countervailing duties – where no payment by Applicant – reviewable decisions under the Customs Act 1901 (Cth) – where no jurisdiction

LEGISLATION

Customs Act 1901 (Cth) s 273GA

REASONS FOR DECISION

Deputy President Bernard J McCabe

27 October 2020

1. The Applicant is an importer of goods. It has asked the Tribunal to review a decision of the Comptroller-General of Customs to demand unpaid interim dumping duty. The Respondent says the Tribunal has no jurisdiction to entertain the application. The Respondent argues the decision to impose a duty, or to demand payment of such duty, is not among the prescribed decisions reviewable by the Tribunal in s 273GA of the Customs Act 1901 (Cth) (the Act).

2. The Applicant relies on the wording of the Final Demand letter that suggests a dissatisfied party can apply to the Administrative Appeals Tribunal for review. The Respondent says the letter is inaccurate, but there are alternative means by which customs duty disputes may properly be brought before the Tribunal.

3. The Tribunal does not have jurisdiction to deal with this matter. I explain my reasons below.

   BACKGROUND

4. The Applicant imports goods from China which are then sold to an Australian customer. The goods include hot dipped galvanised circular iron or steel pipes of varying diameters, with threaded ends and a coupling attached. The Australian Border Force, following a Compliance Assessment, considered the Applicant had incorrectly classified the goods as ‘parts prepared for use in structures’. Instead, the Australian Border Force determined the goods were appropriately classified as ‘steel conduits prepared for use in structures’.

5. The difference in classification has significant implications for the Applicant. Goods classified as ‘steel conduits prepared for use in structures’ are subject to interim dumping duties and interim countervailing duties. These duties are imposed as an additional duty on dumped or subsidised imports deemed to have injured Australian industry. For the Applicant, this resulted in a demand for payment of $470,427.11 interim dumping duty and $313,960.98 interim countervailing duty.

6. The Applicant received a letter of ‘Final Demand’ and a ‘Notification of unpaid Interim Dumping Duty’ on 4 May 2020. The Applicant referred to these letters as the reviewable decision when it filed its application for review with the Tribunal on 18 June 2020. The Applicant says it has already told the Australian Border Force it disagrees with their decision to demand payment of the duties. The Applicant wants to challenge the classification of the goods and the consequent duties and points out the Final Letter and Notification both refer to the Tribunal as the appropriate venue for seeking review. To date, the Applicant has not paid the demanded duties.

   Does the Tribunal have jurisdiction to review this decision?

7. The Tribunal is a creature of statute. Its authority to review a decision must be traced back in each case to an enactment. It follows the Tribunal must have careful regard to the terms of that enactment to establish if it has jurisdiction in a particular case.

8. Section 273GA of the Act lists those decisions in respect of which applications may be made to the Tribunal. A decision to impose an interim dumping duty or interim countervailing duty is conspicuously absent from the list. The Respondent says the Tribunal has no jurisdiction to directly review a decision that a duty is due, or a decision to demand payment of such a duty.

9. The only avenue available to the Applicant is to pay the demanded duty and then apply for a refund from the Collector of that duty. The decision to refuse to refund the duty is a decision in respect of which the Tribunal has jurisdiction: s 273GA(1)(haaa). This is not the avenue which the Applicant has taken.

10. The Respondent acknowledges the jurisdiction issue may be perplexing for the Applicant. I do note the Respondent’s representative has gone to some lengths to identify the manner in which the Applicant may properly bring an application to the Tribunal. In the absence of such steps having been taken, there is simply no reviewable decision for the Tribunal to entertain within any of the grounds listed in s 273GA.

    CONCLUSION

11. The Tribunal does not have jurisdiction to review the application.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

...............................[SGD].........................................

Associate

Dated: 27 October 2020

Date(s) of hearing:	25 September 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	R Northcote, Department of Home Affairs