Articles & Information

China FTA Article.
This Article provides a snapshot of key issues concerning the China-Australia Free Trade Agreement that may affect importers and brokers.

Chinese pasta article.
This Article concerns an AAT case conducted by Gross & Becroft that dealt with the issue of whether certain Asian foods such as dumplings, wontons and dim sims should be classified as stuffed pasta for customs tariff purposes.

Wheelie Bin case.
This Article concerns an AAT case conducted by Gross & Becroft that dealt with the tariff classification of wheelie bin wheels and the use of the Harmonized Notes.

Need for full description TCOs.
This Article concerns the interpretation by the Federal Court of a Tariff Concession Order for electrical transforming equipment and confirms the need for precision in drafting TCOs.

The Clayton's Textile.
This Article concerns a decision of the AAT to classify a plastic article for use in the building industry as a non-woven textile product and shows that it extremely difficult to determine the correct tariff classification for certain manufactured materials.

Classification of Infant Sleeping Bags
In the decision of the Administrative Appeals Tribunal of Roger Armstrong Agency & Anor v CEO of Customs the classification of infants sleeping bags was under consideration. Gross & Becroft was successful on behalf of the importer in having the AAT overturn the position taken by Australian Customs.

Customs Attack on Buying Commissions
This article concerns the question of when fees or commission paid to buying agents do not form part of the customs value for determining customs duty that is payable.

The new Australian Anti-Dumping Commission
This article concerns the new body set up by the Australian Government from 1 July 2013 to investigate anti-dumping complaint made by the Australian industry.

Becroft Standard
The following information sheet concerns the new text of Dr. Ross Becroft, The Standard of Review in WTO Dispute Settlement: Critique and Development, Edward Elgar, UK & USA 2012. The Standard of Review concerns the manner in which World Trade Organisation Panels review international trade measures imposed by different countries and customer territories.

CLASSIFICATION OF PORSCHE AND FERRARI RACING CARS
Customs decision to classify factory built racing cars as passenger motor vehicles imported under a permit restricting their use to racing, has been successfully overturned.

CLASSIFICATION OF AIR-CONDITIONING COMPONENTS
Customs tried to notionally assemble air-conditioning components into complete systems where the components attracted concessional duty entry. Gross & Becroft successfully had Customs revoke that decision and agree to pay refunds for the prior four years.

IMPORT SALES TRANSACTION
Australian Customs have published a Customs notice – number 2010/13 which seeks to clarify the definition of “import sales transaction” within the valuation provisions in Division 2 of Part IX of the Customs Act. This is in the context of ensuring that the correct Customs value is expressed where an importation may have multiple contracts of sale.

SUCCESS ACHIEVED FOR OLIVE IMPORTERS
Gross and Becroft have successfully maintained the duty free status of certain olive importations on behalf of a number of major olive importers into Australia.

WTO RULES AGAINST AUSTRALIA’S RESTRICTIONS ON IMPORTS OF NEW ZEALAND APPLES
On 9 August 2010, a World Trade Organization (WTO) dispute settlement panel ruled that Australia’s current regulatory measures applying to apples imported from New Zealand were inconsistent with Australia’s obligations under the WTO rules. This case essentially concerns the legality under international trade law of our quarantine procedures.

NOT PLAIN SAILING - THE CONSIGNMENT RULE UNDER THE AUSTFA - BY ROSS BECROFT
The recent decision of James and Chief Executive Officer of Customs [2009] AATA 670 (4 September 2009) demonstrates the potential pitfalls of trying to import goods duty free that are manufactured in a free trade zone.

CUSTOMS ISSUES PROVISIONAL DUMPING DUTY AT 16% ON ALUMINIUM EXTRUSIONS FROM CHINA - BY ROSS BECROFT
Australian Customs in late October 2009 have issued a Preliminary Affirmative Determination in which provisional dumping duty of 16% will be levied on all imports of Aluminium Extrusion Products from China as of 5 November 2009.

TARIFF CONCESSION ORDERS - CHANGE OF PRACTICE IN TCO INTERPRETATION - BY LOUIS GROSS
The recent decision in STI Tyres and CEO of Customs (13th of November 2009) has provided another dimension in terms of the methods available for the interpretation of a TCO to see what goods qualify under the terms of that TCO.

SHIPPING CLAIMS: DIFFICULTIES WITH ARGUING THAT THE CLAIM IS IN THE WRONG COURT
The recent decision Australian Federal Court decision of Heilbrunn v Lightwood PLC demonstrates that it is often difficult to persuade a Court to decline jurisdiction and not hear the case.

DEFINITION OF "MANUFACTURER" FOR TARIFF CONCESSION PURPOSES
The Tariff Concession system under the Customs Act provides that where no substitutable goods are produced in Australia in the ordinary course of business an importer is entitled to obtain a Tariff Concession Order. This allows for duty free entry.

PARALLEL IMPORTATIONS OF TRADEMARKED GOODS
Australian Federal Court decision of Heilbrunn v Lightwood PLC demonstrates that it is often difficult to persuade a Court to decline jurisdiction and not hear the case.

POLICY BY-LAWS – ENHANCED POLICY BY-LAWS SCHEME (ITEM 71) AND CERTAIN INPUTS TO MANUFACTURE (ITEMS 57 AND 60)
These Schemes are administered by AusIndustry and can be of great benefit to Australian importers.

SUCCESS IN DEFENDING TCO FOR PET
Gross & Becroft were retained by one of Australia’s major importers of polyethylene teraphalate (PET) which is utilised by the client to manufacture carbonated soft drink bottles, long life fruit juices and still water bottles.  We had originally been involved in the successful application for the Tariff Concession Order and were again retained by the importer when a local company claimed that it was a manufacturer of substitutable goods.  In the process of defending the application for revocation, it became quite clear that the local company did not meet the 25% local content threshold, despite claiming that it locally sourced some of the ingredients utilised in the manufacture of PET.

TOUGH ROAD TO OVERTURN A GARBAGE BIN (A DUMPING CASE)
Schaefer, a Malaysian exporter of wheelie bins, has failed in the Federal Court to have dumping duties removed.  The exporter had won five large Australian contracts for the supply of mobile garbage bins, predominantly to Australian councils.  In response to this significant volume of imports that was occurring within a short space of time, Nylex Limited and another company Sulo lodged an application to Australian Customs for the institution of dumping duties.  As per usual, the key issues were whether or not the Malaysian imports were being bought into Australia at dumped prices (i.e. below the normal value in the domestic Malaysian market) and whether or not local industry had suffered material injury as a result of the imports.

“FREE” TRADE AGREEMENTS – BEWARE OF YOUR GOODS NOT GETTING IN WITH PREFERENTIAL DUTY RATES- BY ROSS BECROFT
With the recent spate of Australian bilateral FTAs with Singapore, Thailand and the United States, traders and their agents need to be aware of any potential problems with the composition, manufacture or shipment of goods that might result in them not being covered by the Agreements and therefore not receiving preferential duty status.

PACIFIC BRANDS ‘KING GEE’ AND ‘STUBBIES’ CASE – WHO HAS THE RIGHT TO DISTRIBUTE JOCKS AND SOCKS IN AUSTRALIA? BY ROSS BECROFT
This case involved problems that arose after Pacific Brands acquired Sara Lee's Australian operations where another company claimed that it retained the right to manufacture underwear and socks under these well known labels.

CUSTOMS ROLLED IN SUNSCREEN BLIND CASE
In the recent case of Mermet Australia Pty Ltd & Ors v CEO of Customs the tariff classification of sunscreen blinds was in issue. Louis Gross & Associates successful acted for Mermet Australia in having a decision by Customs to classify the goods to Chapter 54 overturned.

SIEMENS LTD v SCHENKER INTERNATIONAL (AUSTRALIA) PTY LTD - THE FINAL WORD ON FORWARDER’S LIABILITIES
The High Court, on 9 March 2004, determined that a FIATA Air Waybill did extend protection to a freight forwarder where goods were damaged during the road leg following air carriage. Accordingly, Schenker was finally successful in this case following four separate Court hearings. (This article was published in the CBFCA's e-bulletin)

POSSESSORY LIENS IN SALE OF GOODS TRANSACTIONS: NAVIGATING THROUGH THE FOG
Before advising on a client's rights regarding a possessory lien, a practitioner needs to be clear about the distinctive features of such a lien and how it operates in competition with other rights or securities over goods. By Ross Becroft – Published in the April 2004 Law Institute of Victoria Journal

AUSTRALIAN OLIVE OIL PRODUCER LOSES DUMPING AND SUBSIDY COMPLAINT AGAINST EUROPEANS
Australian Customs recently terminated its investigation concerning exports of olive oil from Spain, Italy and Greece because the complainant had failed to prove that EC subsidies were 'countervailable' or that dumping into the Australian market had caused material injury to the complainant.

CEO OF CUSTOMS v LABRADOR LIQUOR WHOLESALE PTY LTD
Importers should be aware that this recent landmark High Court case means that Customs must meet the criminal standard of proof when prosecuting businesses or individuals under the Australian Customs Act.

INDEPENDENT DISTILLERS (AUST) PTY LTD -v- CEO OF CUSTOMS
Louis Gross & Associates recently won a case in the Administrative Appeals Tribunal (AAT) to confirm that Customs duty on RTD’s (Ready To Drink mixed drinks) was to be calculated on the actual alcoholic content and not the labelled content.

CASE NOTE: AMCOR V CEO OF CUSTOMS
OVERTURNING GOVERNMENT DECISIONS: A CASE STUDY
This case concerned a challenge by an importer to a Customs decision under Australia’s anti-dumping regime. The Court held that there was a failure by Customs to properly assess an application for a Final Determination of duty.

CASE NOTE: MATTHEW SHORT & ASSOCIATES -V- RIVIERA MARINE
(INTERNATIONAL) & ANOR NSW Court of Appeal
A boat carried by a carrier engaged by a forwarder was damaged. This case examines the respective roles and liabilities of each of the parties and their ability to rely on the exemption clauses contained in their terms of trade.

CUSTOMS VALUATION FIASCO

The complexity of Australia’s Customs Valuation provisions is highlighted here by an example of Customs failing to properly conduct a revaluation pursuant to s.161H(5).