Push Investment Group Limited v The Commissioners for HMRC

Neutral Citation: [2025] UKFTT 01534 (TC) FIRST-TIER TRIBUNAL TAX CHAMBER Case Number: TC09713 Taylor House, London Appeal reference: TC/2018/02030 ANTI-DUMPING DUTY/COUNTERVAILING DUTY – whether the export undertaking certificate submitted with the customs declaration needed to be valid at the time of the declaration – yes – therefore whether exemption from anti-dumping duty/countervailing duty for solar panels imported from China in 2014 applies – no – appeal dismissed Heard on: 23 – 24 September 2025 Judgment date: 11 December 2025 Before TRIBUNAL JUDGE AMANDA BROWN KC DR CAROLINE SMALL Between PUSH INVESTMENT GROUP LIMITED (FORMERLY PUSH ENERGY LIMITED) and Appellant THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS Respondents Representation: For the Appellant: Mr Ben Elliot of Counsel instructed by Birketts LLP For the Respondents: Mr Howard Watkinson of Counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs DECISION INTRODUCTION 1. Investment Group Limited) (Appellant) by HM Revenue & Customs (HMRC): This appeal concerns the following decisions issued to Push Energy Limited (now Push (1) A post clearance demand notice (C18) issued on 11 October 2017 in the sum of £1,115,540.04 consisting of £789,507.01 Anti-dumping Duty (ADD)1, £140,109.69 Countervailing Duty (CVD)2 and £185,923.34 import VAT. (2) An assessment for a civil penalty (Penalty Assessment) issued on 30 October 2017 in the sum of £1,250. (together Decisions). 2. The Decisions concern the importation of a single consignment (Consignment) of 28 containers of silicon photovoltaic modules (Solar Panels) purchased by the Appellant from a counterparty Yingli New Energy Resources Co. Ltd (Exporter), a Chinese corporation. The Consignment was released into free circulation after the expiry date shown on the accompanying Export Undertaking Certificate (EUC). The Decisions were made on the basis that the expiry of the EUC resulted in the importation failing to meet the requirements of Implementing Regulations 1238/2013 (ADD Reg) and 1239/2013 (CVD Reg) (together Regs) such that they were ineligible for the exemption therein provided from ADD and CVD. 3. For the reasons set out below we dismiss the appeal. FINDINGS OF FACT 4. Prior to the hearing certain basic facts were agreed. 5. We were provided with a hearing bundle consisting of 952 pages and a supplementary bundle of 89 pages. Included within those bundles were witness statements from Lee Maughan, Alice Hawkes and Andrew Khan on behalf of the Appellant and Prudencia Orridge on behalf of HMRC. All four witnesses gave sworn testimony and were cross examined. By the end of their testimony all facts relevant to our decision were agreed as follows: (1) The Exporter issued a commercial invoice for the Consignment on 15 October 2014. (2) On 16 October 2014 the Exporter was issued an EUC by China Chamber of Commerce for Import and Export of Machinery and Electrical Products (CCCME) bearing the number 2014000218 and date of expiry as 16 January 2015. (3) The Consignment was loaded onto a container vessel. The relevant bill of lading was issued on 26 October 2014. The Consignment was destined for Felixstowe where it arrived on 5 December 2014. (4) The time taken to transport this Consignment was not inconsistent with other consignments of Solar Panels from the Exporter to the Appellant. All consignments were received at UK ports inside the three-month validity period of the EUC issued in respect of each consignment. (5) Allport Cargo Services (Allport) placed the Consignment under customs warehousing conditions on arrival. 1 ADD was a tariff imposed by the EU on imports that were sold into the EU from specific countries at a price lower than could be achieved on a fair market by EU producers/manufacturers. 2 CVD was a similar tariff imposed on the importation of goods into the EU where such goods had benefitted from government subsidies in the exporting countries. (6) On 30 November 2014, Allport issued an invoice to the Appellant for payment of the import VAT and services provided. The Appellant did not pay the invoice until 27 January 2015 as it was defensively managing its cash flow position. The Appellant did not perceive a risk in delaying payment of the Allport invoice. The Appellant did not, at that time, appreciate that a potential consequence of a delay in the release into free circulation of the Consignment was that ADD, CVD and additional VAT thereon would become due. The Consignment was removed from the customs warehouse procedures and (7) thereby released into free circulation on 29 January 2015. The declaration made was accompanied by the EUC albeit that the EUC bore an expiry date that had passed 13 days previously. No declaration for ADD and CVD was made. (8) The Appellant (and Allport) considered that the Consignment was exempt from ADD and CVD. (9) The only publicly available guidance concerning ADD and CVD concerning Solar Panels was provided for in a document “AD Measure 1960” published by HMRC. That guidance appears to have been published after the ADD Reg and states that “imports of the products declared for release into free circulation under [relevant customs codes] which are invoiced by the companies from which undertakings are accepted by the commission and whose names are listed above with an ‘X’ code will be exempt from [ADD] on condition that: … such imports are accompanied by an EUC according to Annex IV below …” In this regard it reflects exactly the terms of the legislation (see below). (10) On 3 March 2017 the restrictions provided for in the Regs came to an end. (11) HMRC were invited/instructed by OLAF to undertake a series of audits of importations of Solar Panels, though no details of the basis for the audit were provided. (12) Following this instruction, HMRC began an audit in July 2017 of the Appellant’s customs declarations relating to the Consignment and to other imports of solar panels. The audit showed that, apart from the Consignment, all other imports had been declared for free circulation before the expiry of the EUC. HMRC accepted the customs declarations for those other consignments. (13) However, HMRC concluded that the declaration for the Consignment did not meet the requirements of the Regs because the EUC had expired 13 days prior to the declaration being made. In all other regards the importation of the Consignment met the terms of the exemption for ADD and CVD. (14) HMRC therefore concluded that as regards the Consignment the Appellant had failed to correctly declare liability to ADD and CVD. HMRC issued the C18 to recover the ADD and CVD together with the VAT then due on such sums and the Penalty Assessment in consequence of the submission of an incorrect declaration. (15) The parties agree that if the Appellant is liable to the assessed ADD and CVD the VAT and the penalty are also due. LEGAL CONTEXT 6. At the relevant time that the Consignment was released for free circulation, movement of goods into and out of the European Union (EU) was controlled by the provisions of the Community Customs Code (Council Regulation (EEC) No 2913/92) (CCC). In summary, and by reference to the definitions provided in Article 4, the CCC provided that when goods imported into the EU were released into free circulation a customs declaration was required. Articles 62 – 67 CCC set out the provisions for customs declarations and required such declarations to be accompanied by all relevant documents specified in accordance with the relevant procedure. So far as relevant in this appeal, the declaration and associated documentation was required to be provided to HMRC on the date on which the goods entered free circulation. Pursuant to Article 201 the import duties (i.e. the customs duties and charges payable in the importation including, where relevant ADD and CVD) were payable at the time of the acceptance of the associated declaration, i.e. also the date that the goods entered free circulation. 7. Implementing Regulation 2454/93 (Implementing Reg) made further provision concerning entries of goods. Article 199 rendered the declarant of a customs declaration responsible for the accuracy of the information declared, authenticity of the documents attached and compliance with all obligations relaying to the entry. Article 218 specified the documentation required to accompany a customs declaration including “the documents required for the application of preferential tariff arrangements or other measures derogating from the legal rules applicable to the goods declared.” 8. On 30 November 2009, pursuant to Council regulation (EC) No 1225/2009 (1225/09) the EU introduced the power to impose ADD to prevent injury to the Community in respect of the importation of products sold at prices below those for comparable products traded in the ordinary course of trade within the EU. Article 8 of 1225/09 provided that the Commission may accept satisfactory voluntary undertakings from exporters of goods to which ADD would otherwise apply where such exporters agreed to set the price of goods traded with the EU at a price which prevented injury to the EU market. Where such an undertaking was accepted ADD would not be imposed on the imports. 9. The Provisional Anti-dumping Duty Regulation (EU 513/2013) (Provisional ADD Reg) dated 4 June 2013 provided that provisional ADD was imposed on imports of Solar Panels originating in, or consigned from, China precluding the “dumping” of such products into the EU market. Its recitals set out, at considerable length, the investigation leading to the conclusion expressed at recital 163 that the presence of Chinese Solar Panels at prices which undercut those of the Solar Panel industry in the EU had caused injury justifying the imposition of provisional ADD (confirmed at recital 262). The Provisional ADD Reg explicitly applied to exports to the EU by the Exporter (as provided in Article 1). 10. On 27 July 2013 in accordance with Article 8 of 1225/09 various Chinese exporters of Solar Panels, including the Exporter, provided a voluntary joint price undertaking (Undertaking) to the Commission. The Undertaking set a minimum import price (MIP) for the export of Solar Panels by the signatories of the Undertaking to importers in the EU. It also limited the volume of exports to be made (Annual Level). So far as relevant to the decision we need to make the Undertaking provides: (1) It is made in accordance with Article 8 1225/2009. (2) Export Undertaking Certificate is defined as “certificates related to [Annual Level] and issued by CCCME to [exporters] in accordance with the provisions of Annex VI and which will accompany all goods exported to the Union subject to this Undertaking for which the exemption from the [ADD] is sought”. (3) Clause 2 states: “The CCCME and the Companies understand that this Undertaking comprises four main elements, namely: 2.1 [Minimum Import Prices], as defined in Clause 3.4 and Annex I, shall be respected for all exports to the Union of the [Solar Panels] which would otherwise be subject to the [ADD]. 2.2 All exports within the [Annual Level] must respect the MIP. Once the levels specified in Clause 3.2 are reached, the MIP established in Clause 3.4 and Annex IX shall not be applicable and the [ADD] will be levied instead. 2.3 The respect of formal requirements for all exports to the Union of the [Solar Panels], including the issue of export documentation (see also Clause 4 below). 2.4 The respect of other obligations for export to the Union of the [Solar Panels] so that the European Commission can effectively monitor the Undertaking. These include …” (original emphasis) (4) Clause 4 provides: “Export Documentation 4.1 The CCCME and the [Exporter] undertake to ensure that all shipments of the [Solar Panels] to the Union under the terms of this Undertaking are covered by … an [EUC] issued by the CCCME, showing at least the information described in Annex VI, including a declaration of conformity with the terms of this Undertaking. 4.2 The CCCME undertake to issue an [EUC] containing the information described in Annex VI with a validity period of three months only for those quantities which the semesterly level has not been exhausted. The date of the Commercial Invoice shall determine the calendar Semester into which the sale is taken into consideration for the annual level. The certificate’s validity expires when the goods are released for free circulation by the EU Customs Authorities, except in the case of goods returned due to quality claims … 4.3 The original [EUC] must accompany the imports of the [Solar Panels] into the European Union. The CCCME undertake to issue an [EUC] only for Commercial Invoices issued in accordance with the MIP … 4.4 The CCCME and the [Exporter] are aware that the exemption of sales of the [Solar Panels] from the [ADD]is conditional on the presentation to the Union customs authorities of … the [EUC]. …” (5) Other relevant provisions: (a) Clause 5.1 – which provides that the Undertaking is subject to monitoring by the Commission. (b) Clause 5.5 requires the CCCME to provide a report, in a specified and prescribed form, to the Commission within 15 days of the end of each quarter. Annex II sets out the requirements of the form for reporting. It states that the Commission must be able to reconcile all information submitted to the financial accounts of each Exporter. The report applies to all sales and resales of Solar Panels by each Exporter covered by the Undertaking “including goods entered for free circulation and goods subject to a special customs procedure such as inward processing, transit etc.)”. The information required to be provided is very detailed. The information includes granular information on the goods, the commercial invoice and detail of the movement of the goods including date of loading, port of loading in the exporting country, ship name, delivery terms, place of delivery, country of delivery, number of the container. The report must contain the number and date of the EUC. Pursuant to clause 5.7 monthly reports were required to be provided on (c) EUCs issued. (d) Clause 5.8 states: “In case a certificate has to be cancelled (e.g. due to the annulation of a transaction, return due to quality claims or due to force majeure), this shall be reported according to the provisions of Annex II Report D. In case the [Solar Panels are] returned to the exporter due to quality claims, [EUC] can be cancelled and reissued by the CCCME withing one year of the date of the Commercial Invoice under the following conditions: for goods in free circulation, a copy of the export certificate shall be submitted to CCCME and the European Commission; for goods which are leaving the EU after a transit procedure, a copy of the relevant exit confirmation document shall be submitted to the CCCME and to the European Commission. The total annual volume covered by such cancellations shall not exceed [confidential information] of the [Annual Level] … [EUC] during the period in which they are valid subject to provisions of Clause 4.2. …” (6) The CCCME and covered exporters undertake to co-operate with the EU Commission and member states “to verify on-spot, even without prior notice, the veracity of all documents and data furnished” (clause 5.9). (7) There is a breach of the Undertaking, pursuant to clause 7.1.7 if an EUC is “re- issued after the expiry of its validity except in accordance with clause 5.8.” (8) Clause 7.2 provides a warning that any breach, however material, of the Undertaking “shall lead to the withdrawal of the acceptance of the Undertaking” at the discretion of the Commission. Where withdrawn, clause 8.1 provides that the exemption from ADD shall no longer apply. Pursuant to clause 8.2 the CCCME and the covered exporters acknowledge that ADD may be levied retrospectively following withdrawal of the acceptance of the Undertaking. (9) Clause 9.7 provides that a “non-limited” version of the Undertaking would be made available to interested parties. (10) Annex VI prescribed the requirements of the EUC, of relevance is the requirement for the EUC to have a unique number, be dated and state the expiry date of the certificate (three months after issuance). The declaration provided by the CCCME on the EUC states: “I, the undersigned, certify that this certificate is given for direct exports to the European Union of the goods covered by the Commercial Invoice accompanying sales made subject to the undertaking and that the certificate is issued within the scope and under the terms of the undertaking offered by [the exporters] and accepted by the European Commission through Commission Decision [2013/xxx/EU]. I declare that the information provided in this certificate is correct and that the quantity covered by the certificate is not exceeding the threshold of the undertaking.” 11. By Commission Decision 2013/423/EU (Acceptance) it was recorded that the Commission had accepted the Undertaking. In the recitals the Commission acknowledge the Annual Level and the MIP together with the reporting obligations limit the risk of circumvention of the Undertaking and it is in the interests of ensuring the security of supplies of Solar Panels to the EU that the Undertaking is accepted. 12. Recital 12 notes that to enable the Commission to effectively monitor compliance of the Undertaking “when the request for release of free circulation is presented to the relevant customs authority, exemption from [ADD] will be conditional on [a list of requirements including ‘a certificate issued by the CCCME containing at least the elements listed in Annex II and Annex III of the Provisional ADD Reg’]”. A further stated requirement was that the Solar Panels to which exemption applied were shipped either to a company related to the exporter which provided the Undertaking or “the first independent customer acting as importer” and in each case “for free circulation in the Union”. 13. Recital 13 explicitly required that unless, inter alia, the EUC was “presented” ADD would be payable. Similarly, as per recital 14, where the Commission withdrew acceptance of the Undertaking “and declare[d] the relevant undertaking invoices to be invalid, a customs debt shall be incurred at the time of the acceptance of the declaration for release into free circulation.” Recital 15 made plain that a customs debt may be incurred “as a normal trade risk, at the time of acceptance of the declaration for release into free circulation … even if an undertaking offered by the manufacturer from whom they were buying directly or indirectly, has been accepted by the Commission.” 14. The Acceptance was then confirmed by Implementing Regulation 2013/707/EU. 15. The Provisional ADD Reg was amended following the Acceptance, by Implementing Regulation 2013/748/EU. By virtue of Article 6, “imports declared into free circulation” from exporters subject to the Undertaking were exempted “on the condition that … such imports are accompanied by an [EUC] accordingly to Annex III” (Annex III reflected Annex VI of the Undertaking but amended the declaration to refer to Commission Decision 2013/423/EU). A customs debt was imposed at the time of acceptance of the declaration for release into free circulation where one or more of the conditions for exemption was not met. 16. The ADD Reg then imposed definitive ADD on imports of Solar Panels from China subject to the exemption previously recognised by the amendment to the Provisional ADD Reg. Article 3 of the ADD Reg provided for exemption on condition, inter alia, that “such imports are accompanied by an [EUC] according to Annex IV” (Annex IV materially and substantively reflects Annex VI of the Undertaking save that the EUC declaration has “Commission Decision 2013/707/EU” substituted for “Commission Decision [2013/423/EU]”). As such the EUC was required to state an expiry date three months from the date of issuance. Reflecting Article 6 of the Provisional ADD Reg, Article 3(2) provided that a customs debt shall be incurred “at the time of acceptance of the declaration for release into free circulation whenever it is established … that one or more of the conditions … is not fulfilled.” 17. The legislative provisions for CVD reflect precisely the provisions for ADD. The parties agreed that our conclusion on ADD would apply equally to CVD. Accordingly, we do not set out the relevant CVD legislation nor specifically address it further in this judgment. PARTIES SUBMISSIONS 18. We are grateful to both Counsel for their clear skeletons, submissions, and willingness to engage with our questions. We set out below our summary of those submissions on the law some of which we expand upon further in our discussion. We can assure the parties that we carefully reviewed their skeletons and our handwritten notes of the submissions in reaching our decision. Because we do not deal specifically with any point does not mean that it was not considered in the round when reaching our decision. Appellant’s case 19. In essence, the Appellant argues that there is no legal requirement for the EUC to remain valid at the point the customs declaration is made. The EUC must have been valid initially, but if it was, the only requirement is that it accompanied the Consignment and was presented to HMRC when the goods were declared for free circulation. The Appellant contends that any other interpretation would mean it paid a price for the Consignment above the MIP, even though anti-dumping duty is only intended to apply where the price paid falls below the MIP. 20. Our starting point in resolving the issue before us, according to the Appellant, is to focus on the principles of interpreting EU law. Firstly, EU law must be interpreted in context and according to the provisions of EU law as a whole, regarding the objectives and evolution of the law. In this regard we were invited to consider the customs code as a whole and how entitlement to other reliefs and exemptions are justified. Secondly, that the EU principles of legal certainty and proportionality should be 21. observed. 22. The importance of legal certainty was emphasised by reference to HMRC v Isle of Wight (c-288/07 [2008] STC 2964) at paragraph 47in which it was said: “47. Moreover, as the court has repeatedly held, Community legislation must be certain and its application foreseeable by those subject to it ... That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them…. 48. The principle of legal certainty, which forms part of the Community legal order, must be observed both by the Community institutions and by the member states when they exercise the powers conferred on them by Community directives …” 23. As to proportionality, the Appellant notes, by reference to the judgment of the Supreme Court in R (oao Lumsdon) v Legal Service Board [2015] UKSC 41 at paragraph 24, that the principle requires that both legislation and administrative measures must not exceed what is necessary to achieve the relevant objectives pursued (see also paragraph 14 HMRC v Trinity Mirror plc [2015] UKUT 421 (TCC)). 24. Further, and critically, that it is not for an interpreting court to seek to correct what might appear to be a drafting lacuna in the relevant legislation. In this latter regard, we were referred to the judgment of the Court of Justice of the EU (CJEU) in Commission v UK (c0582/08 [2010] STC 2364: “[46] As regards the alleged error and the Commission’s argument that its reading of the relevant provision is also consistent with the logic of the common system of VAT, it must be observed that, even assuming the Commission’s submissions are correct, it is not for the Court, … to make such an interpretation with the aim of correcting Article 2(1) of the Thirteenth Directive. … [51] The Court cannot, in the face of the clear and precise wording of a provision such as Article 2(1) of the Thirteenth Directive, interpret that provision with the intention of correcting it and thereby extending the obligations of the Member States relating to it …” 25. Applying these principles, the Appellant submits that the starting point must be the wording of the legislation. Article 3 of the ADD Reg requires only that “imports are accompanied by an [EUC] according to Annex IV of this Regulation.” It is contended that as HMRC accepts that there is no express requirement that goods must be released into free circulation before the EUC expires we are entitled to conclude that the ADD Reg does not specify that any step (export, import, customs procedure, or release into free circulation) must occur before the expiry of the EUC. Given the detailed and prescriptive nature of the exemption conditions, the absence of such a requirement cannot, it is said, be accidental. Absent such an express requirement the Appellant contends that to impose one would breach the principle of legal certainty as taxpayers have not been made explicitly aware of an obligation with very draconian consequences. 26. The Appellant also points out that at no point until after the ADD Reg had ceased to have effect on 3 March 2017, did HMRC raise the asserted requirement either directly or in the limited guidance provided in AD Measure 1960. 27. The Appellant contrasts this with other EU customs regimes. We were specifically referred to the requirements imposed to set the parameters within which importers are entitled to claim certain preferential customs duty rates where the origin of the goods imported can be demonstrated. Where proof of origin must be proven the Appellant sought to demonstrate that the legislative framework explicitly provides for submission of a valid proof of origin certificate, setting a generous period of validity (usually 12 months) but subject to an express requirement that the certificate be presented within the period of validity. The Appellant sought to demonstrate that such requirements provided a proportionate response to failure to comply in exceptional circumstances. 28. Addressing HMRC’s invitation that we apply a more purposive interpretation to the legislative provisions the Appellant contends that the legislative purpose of ADD sets the framework from which the purpose of the EUC should be determined. It is said that the purpose of ADD can be readily discerned from the very lengthy recitals to the Provisional ADD Reg. It is to prevent injury to the EU market from the importation of Solar Panels from China at significantly lower prices than can be achieved with EU manufacture. The EU market is protected either by the imposition of ADD or, following the Acceptance through adherence to the terms of the Undertaking which have the effect of guaranteeing that the named Chinese exporters, including the Exporter, export limited volumes of Solar Panels and adhere to strict pricing requirements. The point in time at which these protections are fixed is the date of the commercial invoice i.e. export rather than import. 29. Within that context the purpose of the expiry date on the EUC is not to impose a time limit on validity requiring the goods to have been released into free circulation prior to expiry, but rather to limit the period during which the certificate can be cancelled or reissued (save in the case of quality claims and force majeure). Following cancellation of an EUC the Annual Level allocated to the relevant commercial invoice is released and can be reallocated. Cancellation is thus possible only for three months and/or when the goods in question have been released into free circulation (necessarily closing any possibility of reallocation). That this is the case is said to be plain by reference to clause 4.2 of the undertaking read in conjunction with clause 5.8. 30. It is submitted that given the very precise and granular detail of the requirements for the EUC it would be surprising that anything more was required of the declarant than simply to present the certificate which had, since issue, accompanied the declaration. The point was reinforced when the specifications for reporting by the CCCME were considered. None of the reports required the CCCME to notify the Commission of the expiry date of certificates issued. The CCCME is required to report cancelled certificates. This underlined that unless the certificate had been cancelled prior to its expiry, the certifications provided confirmed and fixed the MIP and Annual Level in respect of the Solar Panels so certified and provided the EU and HMRC with all the assurances required of compliance with the Undertaking and thereby entitlement to exemption from ADD. Thus, there is no rationale for requiring release into free circulation within three months. 31. It is also contended that a factor further militating against an interpretation which imposes a fixed requirement that the certificate is valid at the point the goods are released into free circulation, absent an express legislative requirement, is that it gives rise to a disproportionate consequence. Missing the deadline, by even one minute is to impose, ADD, CVD and VAT thereon on a price which already exceeded the MIP irrespective of the reason for a failure to meet the asserted and non-legislative deadline which has also not been communicated to taxpayers. 32. In the alternative, the Appellant submits that if any step were required before the expiry of the EUC, it could only plausibly be the export or import of the goods, not their release into free circulation. HMRC’s submissions 33. HMRC invite us to focus on the regimes for ADD and CVD as provided for in the Regs and in the context of the CCC and Implementing Reg in so far as it provides the mechanical infrastructure for the making of declarations and the associated requirements to produce relevant documents validating the declaration. They consider that the regime for ADD and CVD is distinct from that for preferential origin, and that the conditions for exemption from ADD and CVD are not to be read as if they were subject to the same flexibilities or exceptions as those for preferential origin certificates. 34. HMRC accept that the Undertaking is also part of the relevant context for interpretation of the requirements prescribed in the Regs but as the Undertaking itself it not part of the legislative infrastructure it can only inform the process of interpretation and may not supplant what the Regs requires. 35. There is no dispute that the Regs are to be construed purposively by reference to the EU principles of legal certainty and proportionality. HMRC accept that we should not correct or rectify or extend any failing in the Regs or impose additional obligations not provided for under the Regs. HMRC contend that whilst there is no expressly stated requirement for the EUC to be valid it is nevertheless an obvious stipulation within the terms of the Regs properly construed. 36. HMRC emphasise that the ADD and CVD exemptions are to be strictly construed, citing the decision of the CJEU in Baltic Agro AS v Maksu- ja Tolliameti Ida maksu- ja tollikeskus (Case C-3/13) (Baltic), which held that exemptions from anti-dumping duties “may be made only under certain conditions, in cases specifically provided for, and thus constitute an exception to the normal regime for ADD. The provisions which provide for such an exemption are, therefore, to be interpreted strictly”. Similarly, in HMRC v Isaac International Ltd (Case C-371/09) (Issac), the CJEU held that the legislature expressly and specifically made entitlement to the exemption subject to certain administrative restrictions (in that case an authorisation) which could not be set aside simply because the other requirements for exemption could be established. A strict adherence to the specific requirements for exemption was required. 37. It is contended that Article 3(1)(c) of the ADD Reg makes it a condition of exemption that imports declared for release into free circulation are “accompanied by an [EUC] according to Annex IV of this Regulation.” Annex IV requires that the EUC must state its expiry date, which is three months after issuance. HMRC argue that the presence of an expiry date is not a mere formality, but a substantive requirement, and that the Regs are clear that an expired EUC is not a valid certificate for the purposes of exemption. 38. The expiry date on the EUC is said to serve a critical function in the scheme of the ADD and CVD Regs. After the expiry date has passed the certificate is invalid otherwise the expiry date serves no purpose. HMRC submit that the expiry date is an effective check on the operation of the exemption regime preventing manipulation of the system, such as stockpiling goods in customs warehouses and releasing them at a time when the MIP or other conditions may have changed, thereby undermining the monitoring and control mechanisms established by the EU. This they contend is particularly relevant for imports by parties connected to the undertaking exporters if the MIP had changed from quarter to the next. The terms on which an EUC can be cancelled and reissued support the role of the expiry date as defining the validity of the EUC and entitlement to exemption from ADD and CVD. 39. Consistent with the administrative requirements of the CCC Article 67, HMRC contend that the relevant date for assessing the validity of the EUC is the date of the declaration for release into free circulation, not the date of export from the country of origin or the date of arrival in the EU. This requirement is echoed in the terms of the ADD and CVD Regs which reference presentation of the EUC at the time of release into free circulation. 40. HMRC accept that the principles of legal certainty and proportionality are relevant; however, they submit that the test for legal certainty is one of “sufficient rather than absolute certainty” (see R v Misra [2004] EWCA Crim 2375 at paragraph 30 – 37). They contend that the legislation is sufficiently clear as to the requirement for a valid, unexpired EUC, and that there is no lack of legal certainty in interpreting the Regulations as requiring strict compliance with the expiry date. 41. As to proportionality, HMRC observe that the Appellant’s challenge on the grounds of proportionality is a challenge to the terms of the Regs themselves. Any such challenge required a referral to the CJEU which, post Brexit, is no longer permissible by virtue of The Challenges to Validity of EU Instruments (EU Exit) Regulations 2019/673. They further submit that the requirement for a valid, unexpired EUC is not disproportionate; such a requirement is justified by the need to ensure effective monitoring and control of the exemption regime. In this regard, they refer to the decision of the Court of Appeal in Federation of Tour Operators v HM Treasury [2008] EWCA Civ 752, which held that the test for proportionality in the context of tax measures is whether the measure is “devoid of reasonable foundation.” HMRC submit that the requirement for a valid, unexpired EUC is plainly within the margin of appreciation afforded to the legislature and is not disproportionate. 42. Referencing back to Baltic and Issac and in reliance on Krohn & Schroder (C-226/18) and Jebsen & Jessen (C-543/19), HMRC contend that the specific and individual requirements for exemption need to be met. In the latter two cases the CJEU’s focus of attention was the requirements for the commercial invoice. A failure to meet precisely the specifications set out in the relevant Annex of the Regs rendered the invoice invalid and the importer was thereby denied the exemption. DISCUSSION Basic approach to interpretation of EU law 43. We start by noting that we must interpret the provisions of the Regs to determine whether the customs declaration required to be made by the Appellant at the point the Consignment entered free circulation met the requirements which justified exemption from ADD. 44. There was no dispute between the parties that such interpretation requires us to consider the language of the relevant provisions in context, by reference to the objective or purpose of the provisions (as explained in CILFIT Srl and Lanificio di Gavardo v Ministry of Health (Case 283/81 at paragraph 20). We do so in light of the EU principles of interpretation including those of legal certainty and proportionality (see IoW paragraphs 41 and 47) and recognising that derogations, including those providing for relief from customs duties are to be construed strictly but not restrictively (see DHL Air (UK) v HMRC [2025] UKUT 176 paragraphs 63 – 66 and the caselaw cited therein). 45. There was a nuanced difference between the parties as to what the relevant context of Article 3(1) was. HMRC’s contextual focus was restricted to the procedural requirements of the CCC and Implementing Regulation. The context invited upon us by the Appellant was broader considering the whole scheme of the CCC and associated reliefs and exemptions. 46. Whichever of the contextual approaches we chose to take it was accepted between the parties that the Undertaking was not formally legislative material to be interpreted. HMRC sought to play down the importance of it on the basis that it was not a document in the public domain, as evidenced by the application which had to be made by the Appellant for disclosure of it (determined in the Appellant’s favour by the Upper Tribunal [2022] UKUT 00312 (TCC)). The Appellant contends that it is a materially significant document which provides the explanation for an expiry date and obviates a conclusion that the EUC needs to be valid at the time of declaration for free circulation. 47. We observe that, as identified in paragraph 10.(9) above a non-limited form of the Undertaking was made available to “interested parties”. We accept therefore that it was not a public document. There is, therefore, a question as to its admissibility and/or the weight that should be put on it. We admitted the Undertaking de bene esse for the purpose of the hearing. 48. As explained in my judgment in Isle of Wight v HMRC [2025] UKFTT 01114 (TC) (see paragraphs 26 – 44), certainly in the context of interpretation of domestic legislation, non- statutory material is admissible to assist interpretation only in limited circumstances. Where external aids are admissible, they must play a secondary role and must be in the public domain. 49. At an EU level the travaux préparatoires for legislative instruments are used to assist in the interpretation of EU legislation (see for example France and others v Commission C- 68/94 in the context of anti-dumping duties paragraph 167). 50. We have taken the view that whether or not the Undertaking is formally a travaux préparatoire to the Acceptance or the ADD Reg it is a document which is one to which we should have regard but only in the final stages of our analysis and more as a way of confirming or challenging the conclusion we reach on the proper interpretation of the scheme of exemption from ADD as provided for in Article 3(1) purposively interpreted. Interpreting Article 3(1) 51. The Appellant was required by Articles 62, 67 and 201 CCC and Articles 199 and 218 Implementing Reg to make a declaration of import at the point at which the goods entered free circulation. That declaration was required to be accompanied by all documents required under the relevant customs procedure including the documents justifying exemption under Article 3. Without all the relevant documents in the specified form ADD was due. We therefore conclude that the identified provisions of the CCC and the Implementing Reg are relevant context to the decision we need to take. They provide the framework within which the exemption provided in Article 3(1), at the very least, monitored. 52. The documents required to accompany a declaration claiming exemption from ADD are specified in Article 3(1)(b) and (c) of the ADD Reg i.e. a commercial invoice “containing at least the elements and the declaration stipulated in Annex III of the [relevant Regs]” and “an [EUC] according to Annex IV”. 53. This is the first, and we were informed only, case that has needed to or will need to interpret what “an [EUC] according to Annex IV” is. However, the CJEU has provided guidance on the interpretation of a range of conditions for exemption to ADD and we consider it of assistance to evaluate the approach taken by the Court in each of those cases. Isaac concerned ADD on imports of bicycles and certain bicycle parts originating in 54. China. In the case of bicycle parts ADD was due subject to three possible exemptions including a quota exemption for essential parts. The potential exemptions were subject to various conditions including that there be a “written authorisation for the purposes of end-use customs supervisions”. Isaac imported essential bicycle parts at levels below the designated quota; however, it did not hold an end-use authorisation certificate and believed it could use an alternative simplified authorisation. After the issue of a C18 imposing ADD Isaac applied for and was granted a retrospective authorisation but not one that extended into the periods covered by the C18. 55. The Court determined that the ADD exemption had expressly and specifically made entitlement to the exemption subject to the written end-use authorisation. Thus, despite fulfilling the substantive criteria for exemption the formal criteria had not been complied with and the exemption could not apply. The Court noted that the authorisation was of particular importance in demonstrating satisfaction with the substantive exemption criteria at the time the exemption was claimed. In essence the procedural conditions for exemption were as important as the substantive conditions. 56. The Baltic case concerned ADD imposed on imports of ammonium nitrate originating in Russia. Exemption from ADD was permitted in respect of exports shipped directly from the manufacturer in Russia to the first independent customer in the EU where those exporters were party to an undertaking which had been accepted by the EU Commission. In addition to the condition on direct export, exemption applied only on the presentation of an invoice “containing at least all the elements listed in [an annex]” to which the goods precisely corresponded. Baltic was refused exemption on the grounds that having purchased through an intermediary which acted as Baltic’s agent, Baltic was not recorded as the first independent customer. 57. The Court, citing Isaac, recognised that the exemption from ADD was an exception to the normal regime (which imposed the duty) and, as such must be interpreted strictly. The cumulative conditions for exemption were examined in the context of the recitals to the exempting legislation. The conditions were justified as necessary to facilitate the monitoring of compliance with the terms of the undertaking when the goods for which exemption was claimed were released into free circulation. As in Isaac as Baltic was not named on the commercial invoice the exemption was denied. 58. In Krohn & Schröder GmbH v Hauptzollamt Hamburg-Hafen C-226/18 (Krohn) the Court considered the Regs. Solar Panels were imported pursuant to a summary declaration which required that the formalities necessary to be assigned a customs-approved treatment must be carried out within 20 days of the date on the summary declaration. The goods were placed in temporary storage pursuant to the summary declaration. Subsequently, the importer provided the authorities with a commercial invoice which met the requirements of Article 3(1)(b) save for a reference to Decision 2013/423/EU rather than 2013/707/EU, and an EUC complying with Article 3(1)(c). As the formalities required to regularise the summary declaration were not completed within 20 days a customs debt was incurred despite the goods not being released into free circulation. 59. The Court initially determined that despite the customs debt arising purely on the technical basis that there had been a failure to regularise the summary declaration and not on the goods entering free circulation in a conventional sense the provisions of Art 3(1) ADD Reg applied at the point the customs debt was established. Having done so it proceeded to determine there was no basis on which exemption under Article 3(1) could be claimed because it was available only when goods were declared for free circulation which had not occurred. Further, the Court considered that the condition to have provided a commercial invoice at the time the customs debt was incurred had not been met both on the grounds that it had been provided after the debt was incurred and because the declaration, having referred to 2013/423/EU did not meet the precise and exacting specifications of Annex III. 60. The final case is that of (Jebsen) Jebsen & Jessen (GmbH & Co.) KG v Hauptzollamt Hamburg C-543/19. It concerns ADD imposed on citric acid from China. The implementing regulation imposing definitive ADD was subject to exemption where the terms of an undertaking, accepted by Commission Decision, were complied with and on conditions that (a) the goods were manufactured, shipped and invoiced directly to the first independent customer in the EU, (b) the goods were accompanied by a commercial invoice containing at least the elements and the declaration stipulated in an annex and (c) the goods corresponded precisely to the invoice. The commercial invoices on which the taxpayer relied contained a declaration adopting the form of wording prescribed in the annex but incorrectly referred to a predecessor commission decision accepting an earlier undertaking. The invoices were thereby formally defective. 61. The Court determined that the defect in the invoice was significant because it was only by reference to the terms of the specific commission decision that the customs authorities could be confident that the requirements regarding the exemption had been satisfied. The purpose of the requirements had been specified as protecting the EU market and not facilitating the exemption for importers, even those whose imports met the substantive terms of the exemption. As the relevant implementing regulation stated the consequences of failing to comply with the precise terms of the exemption conditions and that ADD would become due the “literal, contextual and teleological interpretation” of the conditions required them to be complied with for the exemption to apply. 62. From these cases we consider that the purpose of the ADD Reg was to prevent injury to the EU market for Solar Panels which had been assessed as a risk without the imposition of ADD. Only in the very precise circumstances envisaged in Article 3(1) was exemption permitted with the default position being the imposition of ADD. It was not enough to show that de facto there would be no injury to the market or that the imports met the substance of the exemption they also need to be declared in precisely the form required as a condition of the exemption. The determination of what met the form of the exemption, as with similar exemptions to ADD, was very strictly applied to ensure that at the point of declaration into free circulation the customs authority could be assured that ADD was not due. Only absolute and complete adherence to the conditions for exemption is sufficient. This is apparent from Krohn and in Jebsen where exemption was denied in whole or in part on the basis that due to an error in the form of the commercial invoice the invoice was invalid. 63. Within the context and purpose of the charge to ADD and the limited application of the exemption we consider that an EUC which has expired is an invalid EUC. If an incorrect reference to the relevant Commission Decision on a commercial invoice invalidates the invoice it must, in our view, be the case that an EUC without an expiry date would similarly be invalid. If that is so, then it would be highly surprising that an EUC presented after the date of expiry would be a valid certificate entitling the importer to exemption from ADD. 64. That conclusion is consistent with the ordinary language and purposive meaning of expiry. Prior to the expiry date an EUC is valid and capable of being presented with the required customs declarations. After that date it is invalid and not a certificate at all. 65. The Appellant submits that the purpose of the expiry date can be discerned from the terms of the Undertaking and that the expiry date is simply to set the framework for cancellation as expressed in clause 5.8 of the Undertaking. 66. We disagree. We consider that the relationship between expiry and validity can be clearly discerned from the terms of the Undertaking: (1) The definition of EUC, describes a certificate to accompany goods for which exemption within the terms of the Undertaking was sought. (2) The Undertaking as described in clause 2 comprises four elements including compliance with all formal requirements for export documentation and other obligations permitting effective monitoring of an undertaking which requires assurance both as to price and annual volume. The EUC is one of the documents required to evidence exemption. (3) Clause 4.2 expressly refers to the certificate having a “validity period” of three months and for “validity” to expire when the goods are released for free circulation except in the case of returned goods. Exemption is stated, in clause 4.4, to be conditional on presentation of the EUC. (4) Clause 5.8 provides for two scenarios: the cancellation of certificates (where the transaction is annulled or goods are returned) and for limited situations in which an expired or certificate invalidated through entry of goods (which turn out to be of poor quality) into free circulation may be re-issued. (5) The declaration on the EUC references the terms of the Undertaking itself and thereby the provisions concerning expiry/validity. 67. Viewed as a whole, we consider that the providers of the Undertaking understood that the certificate that accompanied the exported goods and was required to be presented with the customs declaration when the goods were declared as released for free circulation was to be a valid certificate. That understanding represents an inherent basis for the Acceptance, upon which the exemption is then predicated. In our view only a valid certificate could cease to be valid when presented with the goods for free circulation. As such only a valid certificate, i.e. one within its expiry date, can justify a declaration claiming exemption. Addressing Appellant’s arguments 68. We recognise that our conclusion carries the consequence that the Appellant will pay ADD and CVD on top of a price above the MIP. However, that is a consequence of a failure to comply with the exemption. It is the same outcome that arose in each of Isaac, Baltic, Krohn and Jebsen and not a reason to conclude that our interpretation of Article 3(1) is wrong. 69. Following on from that conclusion, we take the view that there is no breach of the principle of proportionality. The requirements of the Undertaking were agreed between the exporters and the CCCME with a view to securing exemption for the export of Solar Panels that complied with the terms of the Undertaking. That was the basis of the Acceptance. The CJEU has consistently interpreted the terms of an exemption purposively and restrictively to ensure that exemption from ADD applies only where the terms of the conditions are met so as to ensure protection of the EU market. Further, and as HMRC submitted, any disproportionality in the regime is not a matter on which we have any jurisdiction. 70. We consider that our conclusion is consistent with the principle of legal certainty. The principle of legal certainty requires that community legislation must be “certain and its application foreseeable” particularly in the context of fiscal measures (Finanzamt Sulingen v Sudholz C-17/01 paragraph 34). However, such certainty or foreseeability can be derived from the purposive interpretation of the provision in context. That conclusion is confirmed in Sir Andrew Morritt’s rejection of an argument advanced by Vodafone in Vodafone 2 v HMRC [2009] EWCA Civ 446 that conforming interpretation with an element of retrospectivity breached the principle of legal certainty (see paragraphs 55 – 57). In our view, there can be nothing more legally certain than that a certificate with a stated expiry date ceases to be valid on that date. We consider that the language of the ADD Reg, when read purposively, is sufficiently clear in this regard. 71. We do not consider that reference to the different rules which apply to origin preference assist the Appellant. Consistent with the case law to which we have referred at paragraphs 54 to 61 above we would conclude that when applying origin preference the particular conditions provided for must be met. The fact that those conditions may be more relaxed and/or provide for preference to be granted where compliance cannot be achieved through exceptional circumstances does not permit a similar latitude where the legislation does not so provide. 72. In the alternative the Appellant contended that if a particular step must be taken before the expiry of the EUC that step should either be the export or at the latest the point at which the Consignment arrived in Felixstowe. We cannot accept that submission. Article 3(1) requires the certificate to be presented with the declaration for free circulation. It must have accompanied the goods at export and arrival and must therefore have been valid at those points but validity at those points does not permit exemption if it is then invalid by the time of declaration for free circulation. DISPOSITION 73. For the reasons stated we find that as the EUC for the Consignment had expired the Appellant is not entitled to exemption from ADD or CVD and that the C18 was correctly raised. RIGHT TO APPLY FOR PERMISSION TO APPEAL 74. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First- tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 11th DECEMBER 2025