Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Australian AAT issues decision in major bed linen TCO case and opens the way for major refunds

The Australian Administrative Appeals Tribunal (“AAT”) handed down an important decision yesterday which opens the way for importers of certain bed linen to claim up to $70 million in customs duty refunds.

 

The case, General Merchandise and Apparel Group and CEO of Customs (“GMA Case”), concerned a review by the AAT of the decision by the Australian Customs and Border Protection Service (“Customs”) to revoke certain tariff concession orders (“TCOs”) that had allowed duty free entry of certain bed linen.

 

Following Customs’ decision to revoke the TCO, there was an application by an importer of bed linen to reinstate the TCOs. The AAT has now held that Customs’ decision to revoke the TCOs was incorrect and the TCOs should be retrospectively reinstated. This will allow importers who had previously paid customs duty on the affected imported bed linen to claim a refund of that duty for the period while the TCO’s had been incorrectly revoked. However, due to subsequent legislative amendment the refunds will only be available in respect of bed linen imported prior to 4 October 2007.

 

The GMA Case has a long history going back to 2006 when a bed linen importer applied for the TCOs alleging that there were no local manufacturers of such bed linen. Customs made the TCOs and subsequently 2 Australian companies made applications for the revocation of the TCOs on the basis that they were local manufacturers of “substitutable” bed linen. Customs agreed to revoke the TCOs and General Merchandise and Apparel Group applied to the AAT for a review of that decision. The local manufacturers were originally involved in the AAT action as “parties joined” to support Customs’ decision. After a lengthy pre-trial process,

 

the local manufacturers ultimately elected not to proceed to assist Customs in the AAT proceedings by way of arguments or further evidence. The hearing was held in May 2009.  While the GMA Case is important for importers of relevant bed linen, it will also have ramifications for all TCO applicants and those opposing TCOs as important statements were made by the AAT on decisions to revoke TCOs and the role of parties joined in TCO cases.

 

Hunt & Hunt acted for GMA and will be holding sessions on the implications of the GMA Case.  Customs has 42 days to lodge an appeal to the Federal Court given the Christmas and New Year breaks.

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