United Kingdom VAT & Duties Tribunals (Customs) Decisions

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Cite as: [2007] UKVAT(Customs) C240, [2007] UKVAT(Customs) C00240

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Azlan Group plc v Revenue & Customs [2007] UKVAT(Customs) C00240 (21 June 2007)

C00240

CUSTOMS DUTIES — computer parts or accessories — devices with LAN and WAN capabilities — whether to be classified in heading 8471 or 8473, or heading 8517 of the Combined Nomenclature — reference to the European Court of Justice

MANCHESTER TRIBUNAL CENTRE

AZLAN GROUP plc Appellant

- and -

HER MAJESTY'S COMMISSIONERS OF REVENUE AND CUSTOMS

Respondents

Tribunal: Colin Bishopp (Chairman)

Sitting in public in Manchester on 4 June 2007

Roderick Cordara QC and Jeremy White, counsel, instructed by PricewaterhouseCoopers Legal LLP for the Appellant

Hugo Keith, counsel, instructed by their solicitor's office, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

In these joined appeals Azlan Group plc, an importer and distributor of communications equipment for computers, challenges the Commissioners' determination that certain of the products it imported between 1995 and 1999 are properly classified in heading 8517 of the Combined Nomenclature rather than, as Azlan contends, in heading 8471 or, failing that, 8473. The parties have agreed that products imported by Azlan from 2 July 1997 to 31 December 1997 are representative of those it imported throughout the longer period, and they seek a ruling in respect of those representative products.

Products of a similar but not identical kind have already been the subject of references to the Court of Justice of the European Communities in, particularly, Case C-339/98, Peacock v Hauptzollamt Paderborn, Case C-463/98, Cabletron Systems v The Revenue Commissioners and the pending reference, Case C-142/06, Olicom A/S v Skattministeriet, in which the Opinion of Advocate General Mazák has recently been given.

Although the parties had been minded to seek a reference, by consent, to the European Court, preferably in order that it might be linked with the reference in Olicom, the passage of time made that link impossible and the appeals came before me on 4 June 2007 by way of an application by the Respondents for a direction that the appeals be stayed until the judgment of the Court had been given in Olicom. Though it is possible that the judgment in that case may be determinative of the issue in these appeals, depending upon the manner in which the Court chooses to answer the referred questions, I am satisfied that that will not necessarily be the case since the referred questions do not deal with all the matters in dispute in these appeals. Thus, rather than delay these appeals further, it is appropriate to refer to the Court further questions designed to assist the Tribunal in the approach to the correct classification of the products in question, which are identified in the material attached to this reference, a matter on which the Court's judgments to date do not offer complete guidance.

I therefore direct:

1 That the following questions concerning the interpretation of the Combined Nomenclature set out in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p 1), as amended by Commission Regulation (EC) No 1734/96 (OJ 1996 L 238 p 1) be referred to the Court of Justice of the European Community for a preliminary ruling in accordance with Article 234 of the Treaty establishing the European Community:

(1) Is the Combined Nomenclature (Council Regulation (EEC) No 2658/87 as amended by Commission Regulation (EC) No 1734/96) to be interpreted as requiring that the representative sample goods in issue between the parties be classified as "Automatic data-processing machines and units thereof" under tariff heading 8471 (or under the relevant parts heading of Chapter 84, that is to say tariff heading 8473)?

(2) If the answer to Question (1) is in the negative in respect of one or more of the representative sample goods in issue between the parties, is the Combined Nomenclature to be interpreted as requiring that such goods be classified as "Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunications apparatus for carrier-current line systems or for digital line systems; videophones" under tariff heading 8517 (or under the relevant parts heading, that is to say tariff heading 8517 or 8548, pursuant to Note 2(b) or (c) of Section XVI)?

(3) Are such of the representative sample goods in issue between the parties as are capable of linking LANs always classifiable under Chapter 84 or do such products thereby perform a specific function other than data processing within the meaning of Chapter 84 Note 5(E)?

(4) In the light of the answers to the previous questions, what is the position in relation to chassis products?

2 That all further proceedings in this appeal be stood over until the Court of Justice of the European Community has given its ruling or until further direction.

COLIN BISHOPP

CHAIRMAN

Release date: 21 June 207

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