Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26

Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26

The Tribunal did not err in law. On the undisputed evidence, Nufarm's Australian processes chemically converted glyphosate acid into glyphosate-isopropylamine salt and formulated it into a usable herbicide, which was sufficient to constitute at least one substantial process in the manufacture of goods in Australia. Kenso was not denied procedural fairness because it had ample opportunity to seek production and prepare its case, but failed to comply with valid Tribunal directions and did not demonstrate the relevance of the late documents. The Tribunal did not misconstrue "factory or works costs" because the relevant goods were finished goods capable of supply and use, and it was open to...

Jurisdiction
Australia
Judgment Date
01 March 2011
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Full Court Appeal From Two Tribunal Decisions
Outcome
Both appeals dismissed with costs.
Legal Topics
['tariff Concession Order' 'substitutable Goods Produced in Australia' 'substantial Process in Manufacture' 'factory or Works Costs' 'procedural Fairness' 'appeal on a Question of Law']
['customs' 'administrative Law'] ['tariff Concession Order' 'substitutable Goods Produced in Australia' 'substantial Process in Manufacture' 'factory or Works Costs' 'procedural Fairness' 'appeal on a Question of Law']

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Full Court Appeal From Two Tribunal Decisions

Legal Issues

  1. 1 ["Whether the Tribunal misconstrued s 269D(2) of the Customs Act 1901 in finding that Nufarm's process was a substantial process in the manufacture of goods carried out in Australia." 'Whether Kenso was denied procedural fairness when the Tribunal refused to require production of documents relating to Nufarm and Monsanto.' "Whether Kenso was denied procedural fairness when the Tribunal disallowed use of Nufarm documents when cross-examining Nufarm's witness." 'Whether the Tribunal misconstrued the expression "factory or works costs" in s 269D(1)(b) of the Customs Act 1901.']

Ratio Decidendi

The Tribunal did not err in law. On the undisputed evidence, Nufarm's Australian processes chemically converted glyphosate acid into glyphosate-isopropylamine salt and formulated it into a usable herbicide, which was sufficient to constitute at least one substantial process in the manufacture of goods in Australia. Kenso was not denied procedural fairness because it had ample opportunity to seek production and prepare its case, but failed to comply with valid Tribunal directions and did not demonstrate the relevance of the late documents. The Tribunal did not misconstrue "factory or works costs" because the relevant goods were finished goods capable of supply and use, and it was open to...

Court Disposition

Both appeals dismissed with costs.

Orders

  • ['Both appeals be dismissed with costs.']