Comptroller-General of Customs v Vestas - Australian Wind Technology Pty Ltd [2015] FCAFC 185

Comptroller-General of Customs v Vestas - Australian Wind Technology Pty Ltd [2015] FCAFC 185

The Tribunal erred in construing s 269E(2) of the Customs Act 1901 (Cth) as requiring actual prior production in Australia of substitutable goods. The definition of "substitutable goods" in s 269B(1) and the concept of goods produced in Australia in s 269D do not have the temporal operation for which Vestas contended; the temporal work is done by s 269E. Section 269E(2) preserves a capacity limb for made-to-order capital equipment and is capable of applying to goods to be produced in the future. Vestas' construction would leave s 269E(2) largely redundant and was inconsistent with the text, structure and legislative history of Pt XVA.

Jurisdiction
Australia
Judgment Date
16 December 2015
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Full Court Appeal From Vestas Australian Wind Technology Pty Ltd and Chief Executive Officer of Customs [2015] AATA 348
Outcome
Appeal allowed; the decision of the Administrative Appeals Tribunal dated 21 May 2015 was set aside and the matter remitted to the Tribunal for further hearing and determination according to law; Vestas was ordered to pay the Comptroller's costs of the appeal.
Legal Topics
['tariff Concession Orders' 'substitutable Goods' 'made to Order Capital Equipment' 'ordinary Course of Business' 'capacity to Produce Goods in Australia' 'appeal From Administrative Appeals Tribunal']
['taxation' 'customs and Excise' 'statutory Interpretation' 'administrative Law'] ['tariff Concession Orders' 'substitutable Goods' 'made to Order Capital Equipment' 'ordinary Course of Business' 'capacity to Produce Goods in Australia' 'appeal From Administrative Appeals Tribunal']

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Full Court Appeal From Vestas Australian Wind Technology Pty Ltd and Chief Executive Officer of Customs [2015] AATA 348

Legal Issues

  1. 1 ['Whether the Tribunal erred in construing s 269E(2) of the Customs Act 1901 (Cth).' 'Whether the expression "substitutable goods" in s 269B(1) is confined to goods that have at some time in the past been actually produced in Australia or can encompass goods to be produced in the future.' 'Whether "goods that ... are substitutable goods ... and ... are made-to-order capital equipment" in s 269E(2)(a) and (b) are confined to goods that presently exist or have previously been produced in Australia.' 'Whether s 269E(2) preserves a capacity limb for made-to-order capital equipment without requiring actual prior production of the substitutable goods.' 'Whether the Court should make factual findings under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) about whether the substitutable goods were made-to-order capital equipment.']

Ratio Decidendi

The Tribunal erred in construing s 269E(2) of the Customs Act 1901 (Cth) as requiring actual prior production in Australia of substitutable goods. The definition of "substitutable goods" in s 269B(1) and the concept of goods produced in Australia in s 269D do not have the temporal operation for which Vestas contended; the temporal work is done by s 269E. Section 269E(2) preserves a capacity limb for made-to-order capital equipment and is capable of applying to goods to be produced in the future. Vestas' construction would leave s 269E(2) largely redundant and was inconsistent with the text, structure and legislative history of Pt XVA.

Court Disposition

Appeal allowed; the decision of the Administrative Appeals Tribunal dated 21 May 2015 was set aside and the matter remitted to the Tribunal for further hearing and determination according to law; Vestas was ordered to pay the Comptroller's costs of the appeal.

Orders

  • ['Questions 1.1 and 1.2 in the Notice of Appeal should each be answered, "Yes".' 'As a consequence, the appeal is allowed, the decision of the Administrative Appeals Tribunal dated 21 May 2015 is set aside and the matter is remitted to the Tribunal for further hearing and determination according to law.' "The...