Our Firm's Services
The firm acts for importers who are involved in disputes with the Australian Customs and Border Protection Service concerning the correct tariff classification of imported finished goods or raw materials. Alternatively, clients may need advice about the duty or penalty implications of choosing particular classifications. All imported goods are classified in a particular manner under the Customs Tariff Act , which is based on the International Harmonized Tariff System. The classification nominated by the ACBPS may require the importer to pay higher rates of customs duty and may involve the imposition of penalties under the Australian Customs Act . Our firm frequently negotiates with Australian Customs, prepares submissions or initiates proceedings on behalf of the importer in the Administrative Appeals Tribunal in order to overturn a decision of this kind made by Australian Customs.
Over the years our firm has acted for importers in relation to a wide range of goods, such as:
Plastics and Chemicals;
Telecommunications and Computer Equipment and Accessories.
The amount of customs duty paid by an importer is based on the value of the goods. The value is determined via a formula prescribed under the Customs Act 1901 (Cth) . Our firm frequently acts for importers to provide advice on issues such as royalty arrangements, licensing fees and buying commissions, all of which may affect the value of the goods for customs duty purposes. Our firm also represents importers where the Australian Customs Service disputes the customs value of the goods. This may also involve preparation of submissions and representation in the Australian Administrative Appeals Tribunal or Courts.
Our firm also successfully acted for two major car importers in having the warranty component for the price excluded from the value for duty.
Issues concerning the treatment of royalties and production assists have also been extensively dealt with by us recently.
Tariff Concession Orders
Where substitutable goods are not produced in Australia, importers may be entitled to pay Customs Duty at lower (concessional) rates. Our firm acts for importers to assist with applications to obtain Tariff Concession Orders and we also act for local manufacturers in applying for revocations of existing Tariff Concessions. The firm has acted in the majority of the leading cases in this field and has been at the forefront of expanding importers' and manufacturers' rights under the applicable legislation across a wide range of industrial, commercial and domestic products.
Our firm successfully acted for major consumer goods importers concerning the availability of a TCO on bicycles. Our firm also regularly acts in relation to TCOs available for plastics and chemicals.
Anti-Dumping and Countervailing Duty Disputes
The World Trade Organisation Rules as embodied in the Australian Customs Act prohibit goods from being dumped by foreign exporters onto the Australian market. Dumping occurs when goods are sold for export to a country at a price that is less than their normal value in the country of export. The Australian Customs Service frequently conducts investigations into whether dumping has occurred and whether Anti-Dumping Duties should be levied on particular imports. Our firm advises both local manufacturers and foreign exporters (import interests) of products that are the subject of Dumping Investigations. This may involve making representations to government for companies or industry groups or providing general advice on current or potential dumping issues.
Our firm has acted for a several major importers and local manufacturers. In one such example we assisted to successfully prevent a competitor of our client from importing competing products that would have entered the market at dumped prices. Dumping issues are particularly complex and a close scrutiny of the facts is required in each case.Anti-dumping actions have become especially prominent recently with the significant trade in goods with China and a general reduction of tariff levels.
International Sale, Distribution, Agency, Licensing and Royalty Agreements
It is extremely important for clients to put in place written agreements that will clearly set out commercial arrangements made with overseas parties. The parties must understand each other's rights and obligations, particularly in the face of potential geographic, cultural and language barriers. Our firm assists parties in the preparation of agreements, such as Distribution or Licence Agreements, which reflect the particular arrangements of clients. In drafting agreements we often advise parties as to how their arrangements are likely to be affected by the customs valuation provisions of the Australian Customs Act .
Our firm has acted for a number of clients importing or exporting products to or from the United States and European Union States. We are happy to assist with preparing or reviewing distribution agreements and advise on any associated regulatory issues, such as approvals, licensing, trademarks etc.
Government Policy By-Laws
The new Enhanced Policy By-Law Scheme run by AusIndustry presents opportunities for proponents of major projects to obtain substantial duty and administrative concessions on their importations. In the preparation and preparing of the application, we place great emphasis on direct contact and consultation with the relevant Government Departments, utilising our many years of contacts with the key officials.
We continue to act for major Australian companies undertaking large projects involving considerable investment and R&D to enable such companies to save costs and improve efficiencies through the granting of Government policy by-laws.
World Trade Organization and Regional/Bi-lateral Free Trade Agreements
Our firm provides advice to companies and groups on how various WTO Agreements and cases are likely to affect their industries or individual operations. (For example, decisions concerning quarantine measures under the Agreement on the Application of Sanitary and Phytosanitary Measures).
With the recent proliferation of bilateral FTAs, we also provide advice on issues covered by the agreements, such as the general scope of the agreements, rules of origin and investment access rules.
Traders are particularly concerned about being able to satisfy the relevant rules of origin in order to take advantage of preferential duty rates and other concessions negotiated by governments.
The introduction and application of international trade Agreements, whether multilateral, regional or bilateral, is continuing to generate considerable regulatory change for traders and locally competing businesses. We advise about these changes and the consequential hurdles or opportunities that may be created.
Trading Terms and Conditions and General Broker/Forwarder Advice
Both trading companies and transport-related agents such as customs brokers and freight forwarders require comprehensive trading terms and conditions in order to set out the parameters of commercial relationships. Terms should deal with the question of liability in the event that there is loss or damage to goods or to a business. Further, service providers should ensure that they have some form of security in the event of non-payment for services. This may take the form of a possessory lien over goods or documents held, or alternatively personal guarantees may be required from directors of customer companies.
Excise and Customs Duty on Alcohol, Tobacco, Petroleum and Biodiesel
Duties on alcohol, tobacco and petroleum products are very high. Disputes in this area can have serious consequences and the Customs and Excise Laws in these areas are subject to frequent alteration. We have acted in matters which involved, for example, distinguishing between solvent and diesel fuel, establishing the correct base for the measurement of alcohol in mixed drinks and excise duty issues on the direct sale of tobacco.
We have provided advice in a recent IPO on excise issues in respect of biodiesel. This included biodiesel made from waste oil products and waste plastic products.We have also recently been advising alcohol companies on government changes to excise duties on Ready to Drink Products.
International companies that have related parties acting as the buyer and seller of goods need to carefully consider how they arrive at appropriate pricing levels in each country. In Australia companies need to ensure that they comply with the requirements of Division 13 of the Income Tax Assessment Act (Cth) 1936 and various taxation rulings that provide for the usage of a number of different accepted methodologies for the structuring of pricing. It may also be the case various double taxation treaties affect the rules that parties must adopt in trading between particular countries. Our firm provides advice on transfer pricing issues and such advice is frequently provided in conjunction advice on customs valuation matters.
Freight and Transportation Disputes and Trade Finance
Problems frequently arise with a sale of goods between parties located in different countries or with sales between local parties involving the transportation of goods from overseas. Goods may be damaged or lost in transit or they may be delivered late, leaving the purchasing party in trouble with its own customers. In different instances, our firm acts for the buyer or seller of the goods, or the freight forwarder or transport company responsible for arranging or carrying out the movement of goods.
Our firm has recently acted in disputes concerning the rights of parties under bills of lading, letters of credit, bills of exchange as well as disputes concerning the underlying sale contract. Contractual disputes may, for example, involve detailed consideration as to which party is responsible for damage to goods based on relevant terms of the contract (eg. FOB, CIF, DDP, ex Works) and the timing or likely cause of damage to the goods. Transport issues will frequently involve a requirement of knowledge of the overarching transport treaties such as the Hague-Visby Rules for carriage of goods by sea and the Warsaw Convention for air carriage.
Our firm has also dealt with a number of disputes concerning the detention of goods due to non-payment of moneys owing. This area of the law concerning what are known as possessory liens is quite complex and requires careful scrutiny.
Government Assistance Schemes
Our firm acts for local manufacturers and exporters in relation to their entitlements to financial assistance under various Government Schemes. Many of these subsidy schemes are quite complex and parties may not be receiving their full monetary entitlements because they are not aware of such entitlements or the relevant Government Department administering the scheme has wholly or partly rejected their claim for assistance. Our aim is to ensure that companies obtain their full entitlements under Government Assistance Schemes.
Recently our firm has undertaken a significant amount of work in relation to the Strategic Investment Program (SIP) for the Textile Clothing and Footwear Industry.
We also frequently advise in relation to the Tradex Scheme applicable to exporters who import raw materials.
Commerce Trade Descriptions
The Australian Customs Service administers a strict regime of required labelling on imports. Matters of interpretation frequently arise. Labelling issues on products such as garments, footwear, golf clubs, kitchenware and watches have been dealt with amongst other goods.
Our firm by way of example provided advice to quickly resolve a labeling issue on chinaware that was under the threat of seizure.
Customs and Trade Policy Review
Our firm is also engaged from time to time by large companies or industry groups in order to review government policies and make representations to government on various customs or trade issues that may affect individual businesses or general industry trading conditions. This will usually involve preparation of written submissions and direct meetings with government officials.
Commercial Advice and Litigation
In addition to the specialized customs and trade work outlined above, our firm undertakes general commercial law work for clients. We have acted for clients in Court Proceedings initiated in the Courts of most States of Australia as well as those initiated in the Federal jurisdiction. We also act for clients in the following further types of matters: Corporate Insolvency, Business Development, Sale and Purchase of Business, Residential and Commercial Property and Leasing.We assisted a substantial business to be sold to a listed company. This involved negotiating a heads of agreement, dealing with a due diligence process, restructuring the business prior to sale, negotiating the share sale agreement and generally assisting with completion.
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