By Boaz Shiponi

In a recent Administrative Appeals Tribunal (AAT) case an importer (Trustee for the Kurowski Family Trust) claimed that food supplements should be classified as medicaments for therapeutic or prophylactic under subheading 3004.50.00 which are duty free.

Customs and Border Protection Service decided to classify the goods under subheading 2106.90.90 (Food preparation not elsewhere specified or included) because the goods were not considered to be medicaments used for the prevention or treatment of any disease or ailment but, rather, food supplements that maintain health and well-being. As a consequence of this decision, an import duty of 4% was applied.

The Importer paid the duty ‘under protest’ and lodged an application for the review of this decision with the Tribunal.

HOW SHOULD THE GOODS BE IDENTIFIED?

The AAT consulted the Macquarie Dictionary to define the key terms in dispute. The following definitions were used to define and subsequently classify the goods.

It found that ‘food’ is defined in terms of “what is eaten, or taken into the body, for nourishment”. In turn, ‘nourishment’ is defined as “that which sustains”.

A ‘supplement’ is “something added to complete a thing, supply a deficiency, or reinforce or extend a whole”.

‘Diet’ is “food considered in terms of its qualities, composition, and its effects on health”. ‘Dietary’ means “relating to diet”.

A ‘vitamin’ is defined as “any of a group of food factors essential in small quantities to maintain life, but not themselves employing energy. The absence of any one of them results in a characteristic deficiency disease.”

After further consideration of an expert’s advice and other specialised sources regarding the definitions of vitamins, the Tribunal found that these definitions indicate that ‘vitamins’ do not fall within the ordinary meaning of the word ‘food’.

HOW SHOULD THE GOODS AS IDENTIFIED BE CLASSIFIED?

The AAT decided that the goods should be classified under subheading 3004.50.00 of Schedule 3 of the Act. This means that the goods are free of duty on importation.

PAYMENT UNDER PROTEST

An owner of goods or the licensed broker acting on behalf of an owner can endorse the entry of goods as Paid Under Protest (PUP) if they dispute the amount or rate of duty payable in respect of any goods.

The duty must still be paid, however the payment of duty under protest provides an opportunity for the owner/broker to apply for a review of Customs decision by the Administrative Appeals Tribunal (AAT).

For further information please contact Saving Point on (03) 9555 3551 or send us an email on [email protected]

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