[2011] UKFTT 370 (TC)

TC01225

Appeal number LON/2006/7030

Preliminary hearing to decide whether or not it is open to the Tribunal to make a finding inconsistent with that reached by the EC Commission concerning the waiver or repayment of customs duty and secondly to decide which provisions govern the determination of origin for the products in question - Tribunal found that it is not open to the Tribunal to make a finding inconsistent with that reached by the EC Commission and that the origin of the products in question is governed by the non-preferential rules

FIRST-TIER TRIBUNAL

TAX 

	TRUEBELL PLC	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS	Respondents

				TRIBUNAL: S.M.G.RADFORD (TRIBUNAL JUDGE)
						E. BRIDGE

Sitting in public at 45 Bedford Square, London WC1 on 14. and 15 March 2011

Mr Richard Barlow for the Appellant

Mr Kieron Beal, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2011

DECISION

1.	This is a preliminary hearing pursuant to rule 5(3)(e) of the First Tier Tribunal Rules of Procedure to decide two issues of law:
(a)	Whether or not it is open to the Tribunal to make a finding inconsistent with that reached by the EC Commission on 4 July 2008 concerning the waiver and/or repayment of the customs duty incurred in this case;
(b)	Which provisions govern the determination of origin for the products in question.

Background
2.	The Appellant carries on business as an importer and distributor of household goods, including lighting products, in the United Kingdom. It trades from premises at 5b Lombard Road, London, SW19 3TZ.
3.	In the course of its business, it has imported and sold compact fluorescent lamps (“CFLs”) for the domestic consumer market. At all material times, relevant supplies of CFLs were sourced by the Appellant from a company called Ecopak, or one of its subsidiaries, in Pakistan.
4.	On 4 April 2000, the European Lighting Companies Federation lodged a complaint with the EU Commission on behalf of EU producers of CFLs. The complaint contained evidence of dumping of CFLs from exporters based in the People’s Republic of China. The Commission decided to initiate an anti-dumping investigation. In the course of that investigation, the Commission received information and/or submissions from a Chinese exporting producer called Firefly Lighting Corporation Limited, based in Xiamen, China (‘Firefly’). Firefly was found by the Commission to have production facilities in China. 
5.	By Commission Regulation (EC) No. 255/2001, the Commission imposed provisional anti-dumping duties on exports of CFLs of Chinese origin on a number of Chinese exporters.
6.	The Commission concluded that there had been injurious dumping in relation to exports of CFLs and imposed provisional anti-dumping duties (“ADDs”). Individual margins were calculated for a number of exporters but not for Firefly. A residual ADD rate of 74.4% was set for all other companies.
7.	The Regulation entered into force on 9 February 2001 and was stated to apply for a period of six months.
8.	Between 4 February 2003 and 1 September 2004, the Appellant imported into the United Kingdom a series of consignments of CFLs from Ecopak in Pakistan. 
9.	On 16 August 2004, Lighting Industry and Trade in Europe (‘LITE’) on behalf of producers and importers of CFLs in the EU lodged a request with the European Commission that it investigate the possible circumvention of anti-dumping measures imposed by Regulation 1470/2001. The request contained prima facie evidence that the ADD measures imposed were being circumvented, inter alia, through trans-shipment through and/or assembly operations in Pakistan of CFLs which were in fact of Chinese origin.
10.	By Commission Regulation (EC) No. 1582/2004 the Commission initiated an investigation into the complaint. Regulation 1582/2004 entered into force on 11 September 2004. The investigation was carried out by DG Trade, a directorate of the Commission.
11.	Between 18 April and 27 April 2005, representatives of the Commission’s European Anti-fraud Office (“OLAF”) conducted a verification mission in Pakistan as part of cooperation between customs authorities. The OLAF Mission inspected Ecopak’s premises for the purposes of determining the true origin of the CFLs exported by that company. The investigation showed that those CFLs did not meet the conditions for recognising the preferential origin as Pakistan. It found that in most cases the alleged components imported from China were in fact complete lamps imported from that country in a semi-knocked down condition. 
12.	The Mission found that all the components used by Ecopak to assemble the CFLs had been imported from China and originated from China. Only an insignificant quantity of ballasts had been purchased in Pakistan. There were insufficient workers to conduct manufacturing operations in Pakistan. The GSP Form A Certificates had therefore been incorrectly issued by the Pakistan authorities. 
13.	It therefore concluded in its report of 10 November 2005 (“the Mission Report”) that these goods could not be granted the preferential tariff regime provided for in Regulation 2501/2001, that they retained their Chinese non-preferential origin and that they were subject to the ADDs imposed by Regulation 1470/2001.
14.	In addition the Mission Report noted that Ecopak was owned by the President and Vice-President respectively of Firefly Lighting, Xiamen, China and that Ecopak had only employed 25 workers. It concluded from this that only minimal assembly operations could have been carried out.
15.	The value of the non-originating components used in the production of the CFLs represented in excess of 60% of the ex-factory value of the finished goods and the goods did not qualify for GSP preferential origin nor did they qualify for Pakistani non-preferential origin.
16.	Incorrect information had been provided by Ecopak to the Pakistan authorities in order to obtain incorrect GSP Form A Certificates of preferential origin. In particular, Ecopak had presented false descriptions of imported products and used false invoices at both importation and exportation of the products. Ecopak had in some cases presented “double” export invoices.
17.	The Appellant made 11 imports of CFLs from Pakistan between 26 April 2004 and 26 October 2004. The exporter in each case was Ecopak.
18.	HMRC raised a number of post-clearance demand Notices (C18s) against the Appellant, in respect of various imports of CFLs by the Appellant from the Islamic Republic of Pakistan into the United Kingdom. The C18s demanded payment of £587,351.80 by way of anti-dumping duty and £23,111.06 as import VAT on the Appellant’s consignments, giving a total figure of £610,462.86. 
19.	The Appellant sought a formal departmental review. The first review decision upheld the C18s. A second review decision dated 14 March 2006 declined to apply the provisions of Article 220(2)(b) of the Community Customs Code (“the Code”). 
20.	A notice of appeal was filed on 12 April 2006 in respect of the two review decisions. The grounds of appeal were that the ADDs were not due under Regulations 1582/2004 and/or 866/05 and that the customs debt was covered under good faith provisions. A claim for hardship was lodged with the notice of appeal. 
21.	By letter dated 20 December 2006, HMRC agreed to refer the claims for remission to the Commission. HMRC sought comments from the Appellant on a draft submission. They required confirmation that the Appellant had nothing further to add to the final submission and confirmation that Mike Hodge Associates had authority to act on behalf of the Appellant.
22.	 Mr Hodge is a customs specialist with considerable experience of customs matters including repayment and remission procedures who has been assisting Mr Eden, managing director of the Appellant, throughout this matter.
23.	The dossier was transmitted to DG Taxud on 28 February 2007. The submission prepared by HMRC stated that: 
       (a)The total amount of customs duty in issue was £610,462.86. 
(b)The importations had taken place between 4 February 2003 and 1 September 2004. 
(c)The OLAF investigation had concluded that these CFLs were of Chinese origin. 
(d)The error alleged was that of the Pakistani authorities in issuing GSP Form A certificates for the exports in question. 
(e)Although the non-preferential rules of origin applied for ADD purposes, the Appellant had reasonably relied upon the GSP Form A certificates as a statement of origin. 
24.	The Appellant was subsequently requested by the Commission to provide further information. It did so. The Commission then published a draft summary of its proposed decision and invited the Appellant to make comments on it. The Appellant through its representative submitted a detailed response to it. 
25.	The Commission’s final decision (“the Decision”) was issued following a meeting on 23 May 2008. The Commission at that meeting noted that:
(a)The question of whether or not the customs debt existed could not be examined by the Commission in the context of the REM/REC procedure; 
(b)The Commission did not consider that there had been a relevant error by the Pakistani authorities for ADD purposes. While there had been an active error by the Pakistani authorities for GSP purposes (issuing the GSP certificates), the Appellant had not met the good faith criteria;
(c)There had been ‘deception or obvious negligence’ for the purposes of Article 239 of the Code.

26.	The Decision was published on 4 July 2008. The Commission decided that:
(a)There had been an error on the part of the Pakistani authorities in respect of normal customs duties. There had been no error in respect of ADDs, since the GSP Form A certificate was not a certificate of origin for anti-dumping purposes. 
(b)There had been no error on the part of the Commission.
(c)The goods had never been declared under their correct CN heading. The Appellant had thereby failed to comply with all the rules in force as regards its customs declaration, with no error having been found in this respect. The terms of Article 220(2)(b) were not met. 
(d)The Appellant was not in a special situation vis-à-vis other traders.
 
Legislation
27.	Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Code at the material time provided for a community wide system of rules governing inter alia goods imported from third countries. Article 20 of the Code provides for the establishment of a Customs Tariff which in turn provides for certain customs duties to be applied to the importation of goods falling within a given nomenclature. By virtue of Article 4(10) and 20(2) of the Code duties for these purposes include ADDs.
28.	Article 20(3) sets out the facts and matters which comprise the Customs Tariff. Article 20(6) states that:
“The tariff classification of goods shall be the determination, according to the   rules in force, of – 
(a)	the subheading of the combined nomenclature or the subheading of any other nomenclature referred to in paragraph 3(b);
(b)	the subheading of any other nomenclature which is wholly or partly based on the combined nomenclature or which adds any subdivisions to it, and which is established by Community provisions governing specific fields with a view to the application of measures other than tariff measures relating to trade in goods, 
under which the aforesaid goods are to be classified.”

29.	The primary rules governing the origin of goods for non-preferential purposes are contained in Chapter 2, section 1 of the Code, at Articles 22 to 26. By virtue of Article 22(2)(b), these rules apply for the purposes of determining the origin of goods in the course of “applying measures other than tariff measures established by Community provisions governing specific fields relating to trade in goods.” By virtue of Article 22(a) read in conjunction with Articles 20(3)(d) and 20(3)(e), these rules do not govern determination of origin for the purposes of the application of “preferential tariff measures.” 
30.	Article 24 states:
“Goods whose production involved more than one country shall be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.”

31.	This general statement of principle is subject to the terms of Article 25, where it is shown that the sole object of any particular processing or working is to circumvent the rules on origin. 
32.	Article 26(2) establishes that notwithstanding the production of any document that is required to be produced as proof of origin of the goods, customs authorities may, in the event of serious doubts, require any additional proof to ensure that the indication of origin does comply with the rules laid down by the relevant Community legislation.
33.	Chapter 2, section 2, through a single article, Article 27, lays down primary rules for determining preferential origin. Article 27 states that the rules on preferential origin shall lay down the conditions governing acquisition of origin which goods must fulfil in order to benefit from the measures referred to in Article 20(3)(d) or (e). Those rules are either determined by agreements conferring preferential tariffs, or are determined by the Committee procedure. 
34.	Article 40 of the Code imposes an obligation on a person bringing goods into the Community to present the goods to the national customs authority of the Member State. 
35.	Whether or not the goods are examined, an obligation to make a summary declaration in respect of the imports arises under Article 43 (subject to the exceptions set down in Article 45). 
36.	Article 44 stipulates the manner in which the summary declaration must be made.
37.	 Article 59 and following deals with placement of goods under a Customs procedure which, in accordance with Article 4(16), includes entry of the goods for free-circulation.
38.	Articles 73 and 74 provide that the goods shall be released once the customs declaration has been accepted and any customs debt paid.
39.	 Once the goods have been released for free circulation, they are accorded the status of Community goods in accordance with Article 79 of the Code, which shall entail the charging of any duties legally due. 
40.	Article 78(3) requires national customs authorities to take steps to regularise an incorrect situation if it is discovered post-clearance of the goods. 
41.	Article 201 of the Code provides that a customs debt on importation shall be incurred through the release for free circulation of goods liable to import duties.
42.	 Import duties are defined in Article 4(10) as being “customs duties and charges having an effect equivalent to customs duties payable on the importation of goods.” It is incurred at the time of acceptance of the customs declaration. Article 201(3) provides as follows:
“The debtor shall be the declarant. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor.”

43.	Articles 217 to 221 impose obligations on Member States to ensure that customs debts are accounted for and paid within certain time periods and that the amount of the customs debt is communicated to the debtor. 
44.	Article 220 provides, with limited exceptions, that where a customs debt has been entered in the accounts at a lower level than the amount legally owed, the amount of the duty which remains to be recovered must also be entered in the accounts. 
45.	Article 221(3) lays down a three-year time limit for communication to a debtor of a customs debt. 
46.	Article 236 of the Code requires duties to be repaid if they were not legally due or where the amount has been entered in the accounts contrary to Article 220(2). 
47.	Article 220(2) provides as follows:
Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts shall not occur where:

(b) the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of the first subparagraph.

The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment.

The person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled. 

The person liable may not, however, plead good faith if the European Commission has published a notice in the Official Journal of the European Communities, stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country.”

48.	Article 230 states that 
	The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
	The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

49.	Article 239 provides as follows:
“1.	Import duties  . . . may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238 – 
-	to be determined in accordance with the procedure of the committee;
-	resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions.

2.	Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. 

However, the customs authorities may permit this period to be exceeded in duly justified exceptional cases.”

50.	Decisions adopted by national customs authorities, including decisions requiring post-clearance payment of customs duties not previously levied, may be challenged before the national courts under Article 243 of the Code.
51.	Commission Regulation (EEC) No. 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No. 2913/92 establishing the Community Customs Code provides for the concrete implementation of the Code (‘the Implementing Regulation’). 
52.	Title IV of the Implementing Regulation is headed ‘Origin of Goods’. Chapter 1 of that Title deals with non-preferential origin. Section 1 of that Chapter addresses “Working or Processing Conferring Origin.” This lays down, in conjunction with Annexes 9 to 11 of the Implementing Regulation, the specific rules which govern the application of Article 24 in the specified cases. Products ex heading 8539 are not within the specified list. 
53.	Chapter 2 governs preferential origin. Articles 66 to 79 set out detailed provisions governing the determination of origin for the purposes of the application of generalised tariff preferences granted by the EU to products originating in certain beneficiary countries.
54.	Articles 198 and following of the Implementing Regulation deal with customs declarations in general. 
55.	Article 199 specifically provides that the lodging of a declaration signed by the declarant renders him responsible for the accuracy of the information provided in the declaration. 
56.	Articles 254 and following cover declarations made for release for free circulation. 
57.	Articles 868 and following govern entry in the accounts and post-clearance recovery.
58.	Article 869 provides that the customs authorities shall themselves decide not to enter uncollected duties in the accounts in cases where they consider the provisions of Article 220(2)(b) of the Community Customs Code are fulfilled. However, this is subject to the exception that they shall not do so where the dossier must be transmitted to the Commission under Article 871 (as amended) of the Implementing Regulation. 
59.	The terms of the Implementing Regulation governing repayment or remission of customs duties lawfully due were amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code. Recital (2) to that Regulation provided as follows:
“Given that under Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities' own resources the Member States are primarily responsible for collecting traditional own resources, it should therefore primarily be up to the authorities of the Member States to decide whether or not import duties or export duties should be entered subsequently in the accounts under Article 220(2)(b) of Regulation (EEC) No 2913/92 or repaid or remitted under Article 239 of that Regulation.”

60.	Recital (3) also identified circumstances in which the matter should continue to be transmitted to the Commission:
“However, in order to ensure uniform treatment of traders and protect the financial interests of the Communities, the obligation to transmit dossiers to the Commission for a decision should remain where Member States consider that the decision should be favourable and either (a) an active error or failing on the part of the Commission is cited, or (b) the circumstances of the case are connected to Community investigations carried out under Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (4), or (c) the amount of duties involved is EUR 500 000 or more.”

61.	Article 871 states that:
“1. The customs authority shall transmit the case to the Commission to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in Article 220(2)(b) of the Code are fulfilled and: 
—	it considers that the Commission has committed an error within the meaning of Article 220(2)(b) of the Code, or
—	the circumstances of the case are related to the findings of a Community  investigation carried out under Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters  or under any other Community legislation or any agreement concluded by the Community with a country or group of countries in which provision is made for carrying out such Community investigations, or 
—	the amount not collected from the operator concerned in respect of one or more import or export operations but in consequence of a single error is EUR 500 000 or more.

2. However, the cases referred to in paragraph 1 shall not be transmitted where: 

the Commission has already adopted a decision under the procedure provided for in Articles 872 to 876 on a case involving comparable issues of fact and of law, 
the Commission is already considering a case involving comparable issues of fact and of law.

3. The dossier submitted to the Commission shall contain all the information required for full consideration. It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence. This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith. The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included.”

62.	Further relevant provisions are found at Articles 883 and following of the implementing Regulation. Article 899 (as amended) governs the specific case of applications under Article 239 of the Code. 
63.	Article 899 now provides
“1. Where the decision-making customs authority establishes that an application for repayment or remission submitted to it under Article 239(2) of the Code: 

is based on grounds corresponding to one of the circumstances referred to in Articles 900 to 903, and that these do not result from deception or obvious negligence on the part of the person concerned, it shall repay or remit the amount of import or export duties concerned, 
is based on grounds corresponding to one of the circumstances referred to in Article 904, it shall not repay or remit the amount of import or export duties concerned. 

2. In other cases, except those in which the dossier must be submitted to the Commission pursuant to Article 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import or export duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. 

Where Article 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.”

64.	Article 899(3) defines the “person concerned” by reference to the persons entitled to make the application (by cross-reference to Article 878) and their representatives, as well as any other person involved in the completion of customs formalities relating to the goods.
65.	Article 904(c) of the implementing Regulation provides that the duties shall not be remitted or repaid where the only grounds relied upon are the presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents subsequently found to be forged, falsified, or not valid for that purpose, even where such documents were presented in good faith. The strict rules in this area must be observed if Member States are to comply with their obligation to use the utmost care to prevent any fraud or irregularity liable to affect adversely the General Budget of the European Communities. See the Eighth Recital to the Community Customs Code in the Preamble to the Code. 
66.	Article 905 provides for a reference procedure to the Commission of the European Communities, in certain defined circumstances. Article 905 states:
“1. Where the application for repayment or remission submitted under Article 239(2) of the Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where: 
the authority considers that a special situation is the result of the Commission failing in its obligations, 
the circumstances of the case are related to the findings of a Community investigation carried out under Regulation (EC) No 515/97, or under any other Community legislation or any agreement concluded by the Community with countries or groups of countries in which provision is made for carrying out such Community investigations, or
the amount for which the person concerned may be liable in respect of one or more import or export operations but in consequence of a single special situation is EUR 500 000 or more. 
           The term “the person concerned” shall be interpreted in the same way as in Article 899.

2. However, the cases referred to in paragraph 1 shall not be transmitted where: 
the Commission has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law, 
the Commission is already considering a case involving comparable issues of fact and of law. 

3. The dossier submitted to the Commission shall contain all the information required for full consideration. It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence. This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith. The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included.”

67.	The relevant terms of the Community Customs Tariff as at 1 January 2004 were to be found in Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. Chapter 85 fell within Section XVI. It covered “electrical machinery and equipment and parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles.”
68.	Article 288 of the Consolidated Version of the Treaty on the European Union and the Treaty on the Functioning of the European Union (OJ C 115 9 May 2008) with reference to Decisions states:
“A decision shall be binding in its entirety.  A decision which specifies those to whom it is addressed shall be binding only on them”.

69.	Provisions of article 26.2.c of Council Regulation (EC) No 2501/2001 of 10 December 2001 (OJ L 346 31 December 2001) as extended by Commission Regulation (EC) No 2331/2003 are:
Article 1

1. The Community scheme of generalised preferences shall apply during the years 2002, 2003 and 2004 in accordance with this Regulation.
2.This Regulation provides for:
(a)	general arrangements,
(b)	special incentive arrangements for the protection of labour rights,
(c)	special incentive arrangements for the protection of the environment,
(d)	special arrangements for least developed countries, and
(e)	special arrangements to combat drug production and trafficking.

Article 26.

1. The preferential arrangements provided for in this Regulation may be temporarily withdrawn, in respect of all or of certain products, originating in a beneficiary country, for any of the following reasons:

…
(e) fraud, irregularities or systematic failure to comply or to ensure compliance with the rules of origin of products and the proof thereof, and to provide the administrative cooperation as required for the implementation and the control of the respect of (sic) the arrangements referred to in article 1(2);

2.	The administrative cooperation referred to in paragraph 1(e) requires, inter alia that a beneficiary country:

 (c) assist the Community by allowing the Commission, in coordination and close cooperation with the competent authorities of the Member States, to conduct Community administrative and investigative cooperation missions in that country, in order to verify the authenticity of documents or the accuracy of information relevant to granting the benefit of the arrangements referred to in Article 1(2)”.

HMRC’s Submissions
70.	Mr Beal submitted that under Articles 871 and 905 of the Implementing Regulation, HMRC was obliged to transfer the dossier to the Commission. This obligation arose because of the involvement of OLAF in providing the Mission Report in this case; and because of the value of the sums at stake which were more than EUR500,000.
71.	He contended that the Appellant sanctioned the referral of the dossier to the Commission and expressly consented to the terms of the submission that was made. The Appellant signed a letter confirming that he had read the dossier and had nothing to add. The Appellant was subsequently requested by the Commission to provide further information. It did so. The Commission then published a draft summary of its proposed decision and invited the Appellant to make comments on it. The Appellant through its representative submitted a detailed response to it. Mr Beal contended that it was simply too late now for the Appellant to suggest (in so far as it does) that HMRC should not have submitted the application to the Commission after all.
72.	Furthermore he contended that Articles 871 and 905 of the Implementing Regulation, which are directly applicable in the United Kingdom, precluded the Commissioners from adopting any other course. He referred to Case C-375/07 Staatssecretaris van Financien v Heuschen Oriental Foods Trading BV [2008] ECR I-8691, ECJ at [60]. 
73.	He submitted that by virtue of Article 288 TFEU (ex Article 249 EC) and sections 1 to 4 of the European Communities Act 1972, the Tribunal could have been in no better position than HMRC with regard to its ability to depart from directly applicable provisions of EU law. This Tribunal could not have taken its own decision on the application for remission and/or repayment in circumstances where the national customs authority was precluded from doing so.
74.	Having been unsuccessful in its application to the Commission, the proper course for challenge for the Appellant would have been to bring an action for annulment against the Decision before the Court of First Instance, pursuant to what was Article 230 EC (and is now Article 267 TFEU). Mr Beal referred to Case C-38/07 Staatssecretaris van Financiën v Schrouff Oriental Foods Trading BV [2008] ECR I-8599 ECJ at [1]and [17] to [19[ and Case C-375/07 Schrouff at [68]. The application for annulment would have had to be brought before the Court of First Instance within two months and 21 days of the date of the Decision. The Appellant did not take that course of action, presumably on the basis of legal advice.
75.	He submitted that it was not open to the Appellant now to seek to challenge the Decision through the back door of raising the same issues of law and fact before this Tribunal. The fact that the time period had expired meant that the Decision was binding vis-à-vis the Appellant as someone who could have brought a challenge to it, but did not. Mr Beal cited Case C-188/92 TWD Textilwerke v. Germany [1994] E.C.R. I-833, ECJ; and Case C-239/99 Nachi Europe GmbH v. Hauptzollamt Krefeld [2001] ECR I-1197, ECJ at [36] to [38].
76.	Mr Beal submitted that this conclusion was reinforced by the terms of the judgment of the ECJ in Case C-375/07 Staatssecretaris van Financiën v. Heuschen & Schrouff Oriëntal Foods Trading BV , where at [64] the Court held as follows:
“However, where an application for remission of import duties has been submitted to the Commission by a Member State for the purposes of Article 239 of the Customs Code and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import operations, such assessments bind all the authorities of the Member State to which it was addressed, in accordance with Article 249 EC, including the courts which have to assess the same case under Article 220 of the Customs Code (see, to that effect, Case C‑413/96 Sportgoods [1998] ECR I-5285, paragraph 41).”
 
77.	Mr Beal contended that the suggestion by the Appellant that it was an abuse of process for HMRC to follow the binding conclusions of the Commission which had been unchallenged by the Appellant was patently misconceived.
78.	Furthermore, even if the Tribunal were to consider that the criteria for Article 220(2)(b) and/or Article 239(2) were met (contrary to the Commission’s express findings), then that would not be an end of the matter. The wording of Articles 871 and 905 respectively of the Implementing Regulation required that where the sum in dispute exceeds EUR500,000 or where the circumstances of the case are related to findings of a mutual assistance mission as here, then the national customs authority cannot simply waive or remit the customs debt itself. Instead, it must submit a dossier to the EC Commission for it to consider the matter. Mr Beal again cited  Case C-375/07 Staatssecretaris van Financiën v. Heuschen & Schrouff Oriëntal Foods Trading BV at [60].
79.	He contended that the only remedy which the Tribunal could direct would be the submission of a dossier to the Commission but that was exactly what had already taken place. Further, transmission of the dossier was not permitted under Articles 871(2) or 905(2) of the Implementing Regulation where the Commission had already adopted a decision under the procedure provided for in the Implementing Regulation on a case involving comparable issues of fact and of law.
80.	Mr Beal contended that the Appellant’s submissions in its statement of case had not addressed the judgment of the ECJ in Heuschen, which was a surprising omission. Nor was it addressed in writing in the Appellant’s note for the directions hearing prepared in November 2009. Rather, the Appellant had cited the judgment of the ECJ in Case C-121/91 and 122/91 CT Control (Rotterdam) BV and another v The Commission [1993] ECR I-3873, ECJ. 
81.	Far from aiding the Appellant’s case, that judgment made clear that the proper way of challenging a decision of the Commission upon the transfer of the dossier to it under the Code was through the initiation of an action for annulment at paragraphs [9]-[10]. He submitted that it was a striking feature of the Appellant’s case that nowhere had it explained why it did not take the obvious step of seeking annulment of the Commission’s decision if it disagreed with it.
82.	The Decision addressed the question of whether an established customs debt should be remitted or repaid, not with the underlying liability to pay the customs debt itself. It followed, as HMRC have acknowledged, that any arguable, underlying challenge to the legality of the customs debt would be entertained by the Tribunal at a substantive hearing.
83.	Mr Beal submitted that the rights of defence of an importer were adequately protected by the concurrent jurisdiction exercised by the Commission and the Community courts the one hand, and the national customs authorities and national courts on the other. The bifurcated procedures do not, contrary to the Appellant’s assertion, restrict their right of access to a judicial remedy.
84.	He said that the outcome of the case law which he had cited was accordingly binding on the Appellant vis-à-vis its application for remission and/or repayment of the customs duties under Article 220(2)(b) and/or Article 239 of the Code. He contended that the fact that the Decision should be determinative before a national court was not surprising given the shared and concurrent competence deployed by the Commission and national customs authorities in this area.
85.	He submitted that it was still open to the Appellant to advance different arguments not determined by the Commission to challenge the imposition of the customs debt, pursuant to Article 236 of the Code, if it considered that any are reasonably open to it. He requested however that the Tribunal directed that evidence aimed at establishing that the tests set out in Articles 220(2)(b) or 239 of the Code were met should not be admitted at any substantive hearing because such a direction would shorten matters considerably.
86.	In so far as the provisions governing the origin of the goods were concerned Mr Beal submitted that the Appellant had made some misconceived submissions in its statement of case about which set of origin rules applied to determine the origin of the goods. He stated that for the avoidance of doubt, the non-preferential rules on origin found in the Code are those applied to anti-dumping issues. This followed from the clear terms of Article 22(b) of the Code. The preferential rules of origin are confined to determining whether preferential tariff measures are applied, under Articles 20(3)(d) and (e), as is made clear by the terms of Article 22(a) of the Code. The preferential rules relate to tariff preferences granted by the EU (either through international agreement or unilaterally) to products originating in certain developing countries and that had nothing to do with the imposition of ADDs.
87.	Mr Beal contended that this position was reinforced by a consideration of the terms of Council Regulation (EC) 384/96 which was the Anti-Dumping Basic Regulation. Article 1(3) of the Basic Regulation states:
“The exporting country shall normally be the country of origin. However, it may be an intermediate country, except where, for example, the products are merely transhipped through that country, or the products concerned are not produced in that country, or there is no comparable price for them in that country.”

88.	He submitted that Article 14(3) stated that 
“Special provisions, in particular with regard to the common definition of the concept of origin, as contained in Council Regulation (EEC) No 2913/92, may be adopted pursuant to this Regulation.”

89.	Mr Beal contended that these provisions made it clear that the terms of the Code governed the question of origin absent specific measures adopted pursuant to this power.
Appellant’s Submissions
90.	Mr Barlow submitted that the Appellant’s case was that despite the Heuschen judgment the Appellant was entitled to rely on the provisions of Articles 220 and 239 of Council Regulation 2913/92 establishing the Code.
91.	He said that HMRC appeared to suggest that the burden of proof on the Appellant included a burden as to questions of law but that was not the case. Burden of proof was a concept that only applied to questions of fact and evidence and had no application so far as issues of law are concerned. 
92.	He submitted that HMRC had acknowledged in correspondence as well as in their skeleton argument that whatever the Tribunal’s decision was on the preliminary issue it would be open to the Appellant to challenge the factual basis relevant to whatever origin rule or rules apply. Indeed HMRC had acknowledged in their skeleton argument that they would need to be put on notice if the Appellant contested the correctness of the Commission’s report so that they could call witnesses from the officials who made the enquiries leading to that report. He said that the Appellant hereby put them on notice that it would contest the factual basis of that report though it was unclear why HMRC appeared to think that they might need to call evidence from other Member States as well as from those officials.
93.	He submitted that Articles 243 to 246 of the Code required Member States to have a procedure for appeals against decisions taken by the customs authorities which obviously included decisions under articles 220 and 239. That requirement had been provided for by Section 16 of the Finance Act 1994 and the appeal was what might be termed a full appeal, as it was not an appeal relating to an ancillary matter as defined in section 16(4).  It was presumably not in doubt that the nature of such an appeal in UK law was that the Tribunal had full fact finding powers and could decide the facts on the evidence presented.
94.	The Appellant relied on CT Control (Rotterdam) v The Commission C-122/91 [1993] ECJ I-03873. In that case the ECJ held that article 13 of Regulation 1430/79 (a precursor of the current general equity provision dealing with special situations) could not be used to challenge a decision of the national court that duty was payable. In other words the ECJ cannot be used as an appeal court against substantive decisions of the national court, which confirmed, Mr Barlow contended, that the national courts do have jurisdiction in such cases. 
95.	 In addition, the ECJ recognized that the audi alterem partem principle applied and that compliance with it was partly secured by the role of the national court.  The Court also added that the audi alterem partem principle was especially important in ADD cases and was only respected at community level if the principles established in the Control Data, van Gend en Loos and Bosman cases were applied, which recognized that the national courts do have jurisdiction. Mr Barlow submitted that CT Control demonstrated that if the matter was one which should not have been referred to the Commission in the firstplace, then the national courts were not debarred.
96.	Mr Barlow submitted that only the clearest provisions should be allowed to curtail those rights as they are provided for both in Community law and UK law. A Community provision curtailing them ought therefore to be clearly intended to curtail that right and should comply with the general rights given under Community law such as the right of non-retrospection and the principle of legal certainty. 
97.	HMRC had contended that the Appellant had a right of appeal under article 230 of the EU Treaty, now said to be article 267 of the TFEU though  Mr Barlow submitted that that appeared to be a misprint as article 263 was the equivalent of 230. As the wording was materially different the Appellant referred to the wording of article 230.
98.	Mr Barlow submitted that as could be seen, the Appellant had no right of appeal against the Commission’s decision under that provision.  The right of appeal of an individual was in respect of a decision addressed to it and Mr Barlow contended that the Decision was only addressed to the Member States; in the form of a regulation which Mr Barlow contended was not the form it took or; a decision addressed to another person which Mr Barlow submitted it was not as it was addressed only to the Member States who are not persons. 
99.	 Further, even if a right of appeal had been bestowed upon the Appellant, the form of the appeal in the second paragraph of the article, “lack of competence” etc, would not have allowed the appellant an appeal against the Commission’s findings of fact.  Those findings were made by unnamed officials and were not open to scrutiny and the actual finding was made by a vote taken amongst the delegates representing the Member States who had not had any opportunity to scrutinise the evidence of the officials.
100.	 Mr Barlow submitted that it followed that what HMRC contended for was a situation where officers of the Commission had reached a conclusion on evidence which the Appellant had had no opportunity to challenge and the accuracy of which was not tested by the Commission before it reached a decision. HMRC now asserted that the Decision could not be appealed despite the fact that both UK and EU law otherwise provided a right of appeal.
101.	 He submitted that the Appellant repeated that very close scrutiny of HMRC’s case on that contention was essential and only if the Tribunal was obliged by the clearest authority to reach such an apparently unjust conclusion should it do so. The Appellant would contend that only the most scrupulous adherence to the relevant procedures would justify that conclusion even if it was justifiable in principle.
102.	 Mr Barlow referred to Article 288 of the Consolidated Version of the Treaty on the European Union and the Treaty on the Functioning of the European Union (OJ C 115 9 May 2008) (paragraph 66 above). 
103.	 He said that the Decision was addressed as follows:
This Decision is addressed to the United Kingdom of Great Britain and Northern Ireland.

This Decision is addressed to the Member States”.

104.	 He submitted that therefore the decision was not binding on the Appellant although he contended that no doubt HMRC would argue that as it was addressed to the UK both specifically and as a Member State that bound the institutions of the UK including the First Tier Tribunal.
105.	 He referred to the provisions of the Code and those of Commission Regulation 2454/93 ‘laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Code’ (“the Implementing Regulation”). He said that the relevant provisions of the Implementing Regulation were article 871 so far as article 220 of the Code is concerned and article 905 so far as article 239 of the Code was concerned.
106.	 He confirmed that a case for applying article 220 must be submitted to the Commission in three circumstances under article 871 of the Implementing Regulation as stated at paragraph 59 above.
107.	 He submitted that the Appellant’s case was that each importation was subject to a separate error so that the third circumstance does not apply. The Pakistan authorities issued a separate certificate of origin for each importation and if, which is not admitted, they were incorrect then each one is a separate error. Each individual importation was for goods valued at less than EUR 500,000. For example if the quota was exceeded by an error caused by another country’s error, this could only be looked at as one error. It was not accepted that the Pakistan authorities issued the GSP certificates in error. 
108.	 He contended that this issue raised issues of fact which it was not open to the Tribunal to rule upon at this stage in the proceedings and so the Appellant submitted that the Tribunal must proceed on the assumed fact that, even if the Pakistan authorities did issue incorrect certificates of origin, each one related to goods worth less than EUR 500,000.
109.	 He said that the argument that each certificate of origin was a separate error seemed to be in issue.  The Appellant relied upon the contention that each importation was a distinct act from the legal and practical point of view and that that was inherent in the procedures for import declarations. Questions such as the amount of duty payable and whether or not an importation exceeded a limit placed under quotas obviously depended entirely on separate importations being distinct operations.
110.	 The Appellant therefore submitted that the third circumstance did not apply and did not justify HMRC submitting the case to the Commission
111.	 Further he contended that there was no investigation based on mutual assistance between the Member States and the Commission under Council Regulation 515/97 and there was no investigation by those parties based on any other Community legislation.
112.	 He accepted that the Appellant might be affected by the provision which applies where an investigation is under an agreement concluded between the Community and another country, or group of countries in which “provision is made for carrying out such Community investigations”. 
113.	 The Mission Report on which the decision in this case was made stated that it was made following a request to the Pakistan authorities for a mission of administrative co-operation under article 26.2.c of Council Regulation (EC) No 2501/2001 of 10 December 2001 (OJ L 346 31 December 2001) as extended by Commission Regulation (EC) No 2331/2003. 
114.	 Mr Barlow said that the Appellant therefore contended that the Mission Report and therefore the Decision was not based on an agreement between the Community and another state under which makes “provision … for carrying out such Community investigations” that is that it does not fall within the second circumstance of Articles 871(1) or 905(1) in the Implementing Regulation. He submitted that it was true that a one-off agreement may have been given by Pakistan over which a fairly big stick in the form of a threat to withdraw the preferences had been wielded but that was not an agreement “for carrying out such investigations” which was clearly meant to refer to agreements in advance that such investigations will always be permitted.
115.	 Mr Barlow contended that the question of whether the Decision was binding could not be decided on the basis that the Appellant made submissions to the Commission as HMRC appeared to suggest in their skeleton argument. HMRC either were or were not right to submit the dossier as a matter of law and the Appellant could not, by its actions, confer upon them a right or duty contrary to the applicable laws. 
116.	 Mr Barlow also contended that HMRC were wrong to assert that the Appellant had lost the right to challenge the Commission report by reason of the expiry of the time limits they say apply to the making of such a challenge. Firstly, he submitted, the time limits only applied to decisions that have to be referred to the Commission for the reasons already explained. If the matter should not have been referred then the time limits were irrelevant. The Nachi Europe case cited by HMRC in their skeleton argument was irrelevant because it dealt with a question about the challenge to a Regulation under an entirely different procedure. 
117.	 HMRC had also referred to the TWD Textiles case in their skeleton argument. Unlike TWD Textiles the Appellant in this case did not have a right to challenge the Decision so far as the conclusions of fact were concerned, as already explained, and so the period within which an action for annulment could be brought are irrelevant.
118.	 None of the provisions of these articles therefore applied because HMRC were not entitled to refer the matter to the Commission and it should never have been referred. The Appellant was encouraged by HMRC to support the referral to the Commission but if there was no jurisdiction then the Appellant’s involvement in the referral could not give the referral jurisdiction where there was none.
119.	 In paragraphs [60] and [61] of the Heuschen decision the Court referred to the Implementing Regulation and the Code and stated that in the relevant situations the Member States must submit the case to the Commission.  The Court did not expressly say that in other cases where those conditions did not apply the Member State should not submit the case to the Commission but that was inherently implied and was strongly supported by the amendment to Article 871 which reduced the circumstances in which a decision should be requested by excluding the previously included general provision in cases of doubt.
120.	 Mr Barlow contended that the principle of legal certainty precluded the Member States from conferring on themselves powers they were not specifically given by the legislation. He therefore contended that as the matter should not have been submitted and the Decision should be treated as ineffective and as having no standing.
121.	 Additionally the appeal in this case was submitted before HMRC submitted the matter to the Commission.  According to paragraphs [62] and [63] of the judgement in Heuschen that meant that the national court should have dealt with the issue anyway.
122.	 With respect to the second issue to be decided Mr Barlow contended that the Pakistan authorities had never withdrawn the GSP certificates they issued and so he contended that the GSP rules still applied. The rules relating to customs procedures generally apply to ADDs and in the absence of any specific provision specifying that the non-preferential rules applied he contended that it was at least unclear which rules applied.
123.	 However, he contended that the goods in question did have Pakistan origin under the non-preferential rules and in view of the fact that HMRC now accepted that it was still open to the Appellant to contend that the goods did in fact have that origin under those rules he submitted that the issue of origin would have to be decided at a subsequent hearing in any event.
124.	 Finally Mr Barlow produced a letter together with a technical note (“the Technical Note”) from Mr Norgrove, a director of HMRC, which had been sent to Mr Hammond MP and forwarded to Mr Eden.
125.	 Mr Barlow directed the Tribunal’s attention to the Technical Note which stated under Points 2 & 4:
The Tribunal proceedings provide the independent legal route to resolve customs disputes and will provide Mr Eden with the possibility to present all the evidence that he considers will support his case including on the matter of “Good Faith”.
126.	 Mr Barlow submitted that this showed that at the highest level HMRC believed that the matter of good faith could be decided by the Tribunal.
HMRC’s Reply Submissions
127.	 Mr Beal submitted that the Appellant had sought to rely upon correspondence passing between Mr. Eden and his MP, Stephen Hammond MP. The Appellant did not seek to rely upon the full contents of the relevant letter until 2.10 pm on 14 March 2011. HMRC had now produced the full extent of the correspondence, so that it could be seen in context. Mr Beal said that it was regrettable that the context was not given to the relevant letter by the Appellant. 
128.	Mr Beal, having taken instructions from his client, HMRC, stated that the Technical Note relied upon by the Appellant referred under the heading “points 2 and 4” referred to the fact that this preliminary hearing provided Mr Eden with the opportunity to present his arguments in relation to jurisdiction, including jurisdiction regarding “good faith.” His arguments had been so presented. He contended that the Appellant was mistaken to consider that the Technical Note departed from the contentions advanced in the Commissioners’ skeleton argument dated 18 May 2010. 
129.	 Further the paragraph immediately above points 2 and 4 stated that it was for Mr Hodge to advise Mr Eden of his “right to appeal” to the European Court of First Instance.
130.	 The paragraph above point 9 stated that: 
“It will be for the Tribunal to decide (if it agrees under the preliminary hearing procedure, that it can potentially reach a decision which is at variance with that already reached by the Commission) whether HMRC, or the Commission has failed to correctly apply/interpret the law.”

Findings
131.	 There appeared to be some disagreement between the parties as to why the dossier was submitted to the Commission. The Appellant stated that it had agreed with HMRC that they should do so because HMRC had encouraged them. The Technical Note at point 1 stated that it was Mr Hodge who asked HMRC to submit a request to the Commission for remission of the duties concerned.
132.	 In any event we find however that HMRC were bound to submit the matter to the Commission. Articles 871 and 905 of the Implementing Regulation which are directly applicable in the United Kingdom precluded HMRC from adopting any other course. This is supported by the case of Heuschen.
133.	 We find that the time limits for applying for an annulment do therefore apply because HMRC were bound to submit the dossier to the Commission.
134.	 Articles 871 and 905 state that there are three circumstances in which the matter should be referred to the Commission
135.	 We find that the circumstances of the case are related to the findings of a Community investigation carried out on mutual assistance and an agreement concluded by the Community with a country in which provision is made for carrying out such Community investigations (second circumstance). The verification mission by OLAF was conducted as part of cooperation between customs authorities.
136.	 We find that in this matter there was a single error being the incorrect issue of the GSP certificates by the Pakistani authorities in respect of goods which exceeded EUR 500,000 (third circumstance).
137.	 We examined the CT Control case with respect to Mr Barlow’s submission that the Appellant relied on the ECJ’s judgement in the CT Control case to show that the national courts did have jurisdiction in this matter. In the summary of that judgement it was stated:
Within the framework of Article 13 of Regulation No.1430/79, the procedure for adoption by the Commission of decisions on repayment or remission of import duties, which comprise several stages, some of which take place at a national level (submission of the application by the undertaking concerned, preliminary examination of the application by the customs authorities) and some at Community level (submission of the application to the Commission, examination of it by the Committee on Duty-Free Arrangements, consultation of a group of experts, decision by the Commission, notification to the Member State concerned), affords the persons concerned all the necessary legal safeguards, in particular that of audi alteram partem, which represents the defence’s most essential right, provided that it is conducted in accordance with the requirements of the Community rules.
138.	 At paragraphs 47 to 49 of this case it was stated:
47. The Applicants maintain that the procedure followed in the adoption of the disputed decisions does not meet the safeguards laid down in this regard by Community law. They say that they did not have an opportunity to express their point of view directly to the Commission and that they did not have all the information that led to the adoption of the disputed decisions.
48. It should be recalled that in its judgement in Case 294/81 Control Data v Commission [1983] ECR paragraph 17 and in its judgment in Van Gend & Loos and Bosman, cited above, the Court has already rejected this plea, put forward in the same legal context. In these judgments the Court held that the procedure for adopting the disputed decisions, which comprised several stages, some of which took place at national level (submission of the application by the undertaking concerned, preliminary examination of the application by the customs authorities) and some at Community level(submission of the application to the Commission, examination of it by the Committee on Duty-Free Arrangements, consultation of a group of experts, decision by the Commission, notification to the Member State concerned), afforded the persons concerned all the necessary legal safeguards.
49. Given that this procedure was followed in the present cases, a fact which the applicants do not contest, the plea of infringement of the defence is unfounded. The procedure followed enabled the applicants to submit all their arguments to the Netherlands authorities; their files were at the disposal of both the Committee on Duty-Free Arrangements and the Commission. Moreover the applicants acknowledge that all the arguments which they could have put forward in favour of remission had been mentioned in their applications and there was no new factor that they could have introduced into their arguments. At all events they knew that their applications were being forwarded to the Commission and could have supplemented the arguments contained in them if they had so wished.
139.	 We did not find that this case was helpful to the Appellant as the national level to which it referred was the submission of the application to HMRC by the Appellant and the preliminary examination by HMRC at which time the Appellant was afforded ample opportunity to express its opinions both initially and by way of seeking two reviews by HMRC of their decision. 
140.	 Although Mr Barlow contended on behalf of the Appellant that the Commission had reached a conclusion on evidence which the Appellant had no opportunity to challenge and the accuracy of which was not tested by the Commission before it reached a decision we find that the Appellant was given an opportunity to both comment on HMRC’s submission, supply further information to the Commission and comment on the Commissions draft decision.
141.	We find in any event that the CT Control case could not be helpful to the Appellant once the matter had been submitted to the Commission as was necessary by virtue of Articles 871 and 905 (1).
142.	 We find that once the matter had been submitted to the Commission the Appellant’s only course of action was to apply within two months to have the decision annulled.
143.	 We find that the judgement of the ECJ in the case of CT Control made it clear that the proper way of challenging a decision of the Commission upon the transfer of a dossier to it was through the initiation of an action for annulment. 
144.	 Mr Barlow submitted that HMRC now asserted that the Decision could not be appealed however we found that EU law had provided an appeal route by way of an application for annulment.
145.	 Although Mr Barlow submitted that the Appellant was entitled to rely on the provisions of Articles 220 and 239 we find that the Commission decision specifically stated that the terms of Article 220 were not met. The Commission decided that the Appellant did not meet the good faith criteria of Article 220(b).
146.	 Additionally the Commission decided that there was deception or obvious negligence for the purposes of Article 239.
147.	 We find that as stated in the Heuschen case the decision binds all the authorities of the relevant Member State which include this Tribunal.
148.	 We examined Case T-191/09 Hit Trading BV Berkman Forwarding BV which was provided to us shortly after this hearing. In that case the Appellants sought annulment of a Commission decision which stated that the remission of certain import duties imposed as a result of CFLs imported from Ecopak was not justified and found that there were similar facts to this matter. The Appellants failed in their application for annulment.
149.	 We find that the rules governing the origin of the goods are the non preferential rules.

Decision
150.	 It is not open to the Tribunal to make a finding which is inconsistent with the Decision.
151.	 The rules governing the origin of the goods are the non- preferential rules.
152.	 The Decision dealt specifically with Articles 239 and 220 deciding that there was deception or obvious negligence for the purpose of Article 239 and that the Appellant did not meet the good faith criteria for the purposes of Article 220.
153.	 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.

TRIBUNAL JUDGE
RELEASE DATE: 3 June 2011