Lumin8 Ltd v Revenue & Customs [2006] UKVAT(Customs) C00220 (22 August 2006)

C0220

ANTI-DUMPING DUTY – compact fluorescent lamps manufactured in the People’s Republic of China – whether applicable – yes – appeal dismissed

LONDON TRIBUNAL CENTRE

	LUMIN8 LIMITED	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S 
	REVENUE AND CUSTOMS	Respondents

			Tribunal:	DR JOHN F AVERY JONES CBE (Chairman)

Sitting in public in London on 21 August 2006

John Coffey, managing director, for the Appellant

Mario Angiolini, counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1.	Lumin8 Limited appeals against a post-clearance demand for £86,011.99 in respect of £72,731.52 anti-dumping duty and increased VAT of £13,280.47.  Mr John Coffey appeared for the Appellant and Mr Mario Angiolini for Customs.
2.	I find the following facts:
(1)	The Appellant traded in integrated electronic compact fluorescent lamps (“CFLs”), better known as energy-saving light bulbs.
(2)	In the course of its business it imported from the People’s Republic of China (“PRC”) two consignments of CFLs, the first on 10 September 2004 for £59,681, and on 8 November 2004 for £48,600.
(3)	The CFLs were incorrectly declared under commodity code 8539299890, whereas the correct code was 853919091, which meant that they were subject to anti-dumping duty at the rate of 66.1% plus additional VAT as a result of the increase in value.
(4)	Customs issued a post-clearance demand on 18 October 2005 for a total of £86,011.99.  The Appellant requested a review on 24 November 2005 and the decision was upheld on review in 7 December 2005 against which the Appellant appeals.
3.	Mr Coffey for the Appellant contends:
(1)	The Appellant did not participate in the investigative procedure carried out by the Commission leading up to Regulation 1470/2001 (“the Regulation”).
(2)	The Appellant was not one of the offending manufacturers against which the Regulation was aimed.
(3)	The Appellant’s CFLs are a quality product and were not the target of the Regulation.  They are approved by the Energy Saving Trust (established as part of the government’s action plan in response to the 1992 Earth Summit in Rio de Janeiro).  The Appellant’s CFLs have a life of over 14,000 hours, which is at the top end of the range compared to other manufacturers.
(4)	The original complainant in the procedure leading to the Regulation has since requested that the anti-dumping duty on CFLs from the PRC be repealed.
4.	Mr Angiolini, for Customs contends:
(1)	The anti-dumping duty under the Regulation is applicable to these consignments.
(2)	The Appellant’s arguments cannot alter the conclusion that anti-dumping duty is applicable.  Only the European Court can disapply the Regulation and the Tribunal should decline to make a reference to the ECJ because there were no grounds for saying that the Regulation was invalid.
5.	Anti-dumping duty is imposed in accordance with Council Regulation 384/96 of 22 December 1995.  It works by comparing the export price to the European Community with the price in the exporting country (“the normal value”).  Where, as here, the exporting country has a non-market economy the normal value is determined on the basis of a price in a third country which has a market economy.  Mexico was chosen as the third country here.  The dumping margin is the excess of the normal value over the export price.  The duty must not exceed this margin.
6.	Council Regulation 1470/2001 of 16 July 2001 imposed a definitive anti-dumping duty on CFLs originating in the PRC at the rate of 66.1 per cent for all companies, other than those contained in a list specifying different rates, for a period of five years.  Having heard the arguments of the parties I am afraid that it is clear that the Regulation is applicable to the Appellant’s imports and I have no jurisdiction to deal with the Appellant’s arguments that their CFLs were not the type of CFLs for which the anti-dumping duty was intended.  I can think of no reason why the Regulation should be invalid so that I might wish to refer the matter of its validity to the European Court. 
7.	The only possible approaches that were available to the Appellant if it could show that its products should not have been covered by the anti-dumping duty were first, that it could have asked the Commission for a review “for the purpose of determining individual margins of dumping for new exporters which have not exported the product during the period of investigation on which the measures were based” (art.11(4) Council Regulation 384/96 of 22 December 1995); or secondly, it could, within the time limit of six months, after the importations request reimbursement from the Commission “where it is shown that the dumping margin…has been eliminated, or reduced to a level which is below the level of the duty in force” (art.11(8)).
8.	Accordingly I dismiss the appeal.  Mr Angiolini asked for costs, Customs having warned the Appellant in a letter of 31 January 2006 that they would do so, and I direct the Appellant to pay Customs’ costs of, incidental to, and consequent upon, the appeal to be determined in default of agreement on the standard basis by a Taxing Master of the Supreme Court.

JOHN F. AVERY JONES

CHAIRMAN
RELEASE DATE:22 August 2006

LON/06/7005