Re Gaganis Bros Imported Food Wholesalers Pty Ltd v Comptroller-General of Customs [1991] FCA 509; (1991) 14 Aar 314 (1991) 32 FCR 179 (31 October 1991)

FEDERAL COURT OF AUSTRALIA

Re: GAGANIS BROS. IMPORTED FOOD WHOLESALERS PTY. LTD.
And: COMPTROLLER-GENERAL OF CUSTOMS
No. G39 of 1991
FED No. 673
Customs
[1991] FCA 509; (1991) 14 AAR 314
(1991) 32 FCR 179

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Customs - Importation into Australia of peanuts - wrong classification used by Customs agent - total duty avoided amounted to $5,561.95 - imposition of 200% penalty - 70% of that penalty remitted by Administrative Appeals Tribunal - appeal by importer against Tribunal's decision seeking further remission - no perceived error of law which would justify the interference of the Court - decision of Tribunal affirmed.

HEARING

ADELAIDE
31:10:1991

Counsel for the Applicant : Mr P.J. Dwyer

Solicitors for the Applicant : Ross and McCarthy

Counsel for the Respondent : Ms S. Singh

Solicitors for the Respondent: Australian Gavernment Solicitor

ORDER

The decision of the Administrative Appeals Tribunal of 19 April 1991 be affirmed.

The applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant in these proceedings, Gaganis Bros. Imported Food Wholesalers Pty. Ltd., imported into Australia between July and September 1989 four consignments of blanched peanuts (sometimes called ground nuts). The applicant's customs agent entered each of the four consignments for clearance into home consumption, attaching the relevant invoice to each entry. The tariff classification that was declared on each of the four entries for the peanuts was 2008.11.00 at a duty rate "free" from developing countries; hence no customs duty was tendered in respect of any of the entries.

2. The third and fourth entries (both of which were dated 18 September 1989) were selected by the Australian Customs Service ("the ACS") for an audit and within the next two days query memoranda were issued questioning the tariff classification. The full tariff heading under which each of the four consignments was entered was:-

"2008 - FRUIT, NUTS AND OTHER EDIBLE PARTS OF
PLANTS, OTHERWISE PREPARED OR PRESERVED, WHETHER
OR NOT CONTAINING ADDED SUGAR OR OTHER
SWEETENING MATTER OR SPIRIT, NOT ELSEWHERE
SPECIFIED OR INCLUDED:
2008.1 - Nuts, ground-nuts and other seeds,
whether or not mixed together:
2008.11.00 - Ground-nuts."

3. This is to be compared with the tariff heading ultimately fixed upon by the ACS as the allegedly correct classification:-

"1202 - GROUND-NUTS, NOT ROASTED OR OTHERWISE
COOKED, WHETHER OR NOT SHELLED OR BROKEN.
1202.10.00 - In shell.
1202.20.00 - Shelled, whether or not broken."

4. This latter classification attracted a rate of 5% duty. Central to the looming dispute was the process of blanching peanuts; did it mean that the peanuts remained in their raw uncooked state, thereby attracting duty at 5%, or did it mean that they could be brought in free because they were properly to be regarded as "roasted or otherwise cooked". The ACS undertook an industry survey with a view to arriving at the correct classification. The consensus opinion was said to be that blanching was merely a process that was used to facilitate the removal of the skin preparatory to cooking the nuts; ACS also claimed that those within the industry who were interviewed and who tasted the peanuts were unanimous in declaring them to be in the raw uncooked state.

5. As a result of its enquiries the ACS issued four separate Post Warrant Amendment entries demanding, in respect of each relevant consignment, the duty applicable to tariff heading 1202. The total duty amounted to $5,561.95. The applicant, who did not accept the classification, paid the duty under protest in accordance with the provisions of s.167 of the Customs Act 1901 (Cth) ("the Act") and thereafter initiated proceedings in the Administrative Appeals Tribunal ("the Tribunal"). Those proceedings effectively sought a review of the classification decision under sub-s.273GA(2) of the Act.

6. On 19 September 1990 the Tribunal affirmed the decision under review (Re Gaganis Bros Imported Food Wholesalers Pty. Ltd. and Collector of Customs Decision No. 6219) and so affirmed the classification that attracted 5% duty. That decision of the Tribunal has not been challenged.

7. ACS decided to invoke the provisions of s.243T of the Act. It is sufficient to set out the provisions of sub-s.(1):-

"243T. (1) Subject to section 243V, where:
(a) a person, whether knowingly, recklessly or otherwise:
(i) makes a statement to an officer that
is false or misleading in a material
particular; or
(ii) omits from a statement made to an
officer any matter or thing without
which the statement is misleading in
a material particular; and
(b) the amount of duty properly payable on
particular goods exceeds the amount of duty that
would have been payable on those goods if the
amount were determined on the basis that the
statement was not false or misleading;
the Comptroller may within 12 months after the statement was
made, by notice in writing, require the owner of the goods
(not being a person who is to be treated as the owner of the
goods by reason of being an agent of the owner) to pay,
within a period of 90 days after service of the notice, a
penalty equal to twice the amount of the excess, or a
penalty of $20, whichever is the greater."

8. Although a discretion is reposed in the Comptroller with respect to whether the provisions of s.243T of the Act will, or will not, be invoked, once a decision is made to utilize its provisions there is no discretion about the extent of the penalty: it is to be "twice the amount of the excess or a penalty of $20, whichever is the greater". Thus penalties totalling $11,123.90 were imposed on the applicant as a consequence of the four false entries. Section 243U of the Act empowers the Comptroller "on the basis of a written application" made in the manner and within the time specified to "remit the whole or any part of that penalty" and paragraph 273GA(1)(ka) empowers the Tribunal to review a decision of the Comptroller under s.243U on the subject of remission of penalty.

9. The applicant sought remissions of all four penalties but they were wholly denied; on review however, the Tribunal remitted each of them by 70%. But, as the penalties were 200% of the duties avoided, this still meant that the applicant had to pay duties totalling $5,561.95 plus penalties totalling 60% of those duties. Being dissatisfied with the decision of the Tribunal, the applicant has applied to this Court pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) claiming that the Tribunal erred in law in reaching its decision to grant remissions of only 70%. The applicant claims that the penalties should have been wholly remitted or, at least, remitted by more than 70%.

10. When an application to remit a penalty is made, the legislation limits the matters to which the Comptroller shall have regard. Subsection 243U(4) states:-

"(4) In considering an application under subsection (1) to
remit the whole or a part of a penalty payable in respect of
a statement or an omission from a statement, being a
statement or omission made by the applicant or by an agent
of the applicant, the Comptroller shall have regard only to
the following matters:
(a) whether the applicant or the applicant's agent,
as the case requires, had voluntarily admitted
that the statement was, or was as a result of
the omission, false or misleading;
(b) the risk to the revenue occasioned by such a
statement or omission;
(c) the capacity of the applicant or of the
applicant's agent, as the case requires, to
avoid making such a statement or omission and
the extent to which that capacity was exercised;
(d) the history of the applicant or of the
applicant's agent, as the case requires, in
relation to the making of statements or
omissions giving rise to convictions under
paragraph 234 (1)(d) or to liability for penalty
under section 243T."

11. Before proceeding to consider the Tribunal's decision and the grounds of appeal, it is necessary to refer to the provisions of s.243V of the Act and to the circumstances that have led to the introduction into the legislation of ss.243T, 243U and 243V.

12. Since 1986, ACS has used a self-assessing system for the clearance of imported goods. There was an important reason for the introduction of this new system; it materially reduced the time taken to clear imports: it is said that goods are now cleared from customs control within four hours. Prior to that, the system was known as a "screener assessment system"; that system required every entry to be checked individually. The objective of the earlier system was a clearance of goods within 24 hours of entry. In addition the new system - "the commodity audit system" or "the green-line system", as it is called - substantially reduced the labour cost of ACS with consequential savings to the tax-payer. In practice, 90% of all imports are processed on the green-line; the remaining 10% however are placed on the red-line where a close examination is made. The extent of that closer examination can vary substantially; it might amount to mere verification of documents or it might extend to physical inspection of the goods; it might even be a "field audit". According to the evidence of Mr Roux, an officer of ACS who gave his occupation as a director in import/export control, a "field audit" involved attending at the premises of the importer and making a thorough examination of the importer's records in respect of the relevant shipment and, in appropriate circumstances, earlier shipments,

13. A decision to put goods on the red-line might arise from one of several causes; it might be a random selection; it could be intuition on the part of a customs officer; then again ACS may have what is called a "profile". Mr Roux described a profile as an "alert" which might have its origin in the nature of the goods or their country of origin or the identity of the exporter or importer.

14. Finally, with the introduction of s.243V there is now the "amber line", the term that is used to describe the process contemplated by that section. That provision is as follows:-

"243V (1) Where the owner of goods or the agent of the
owner is uncertain whether particular information included
in a statement made in respect of those goods might be
regarded as false or misleading in a material particular,
that owner or agent may, by writing included in the
statement, nominate that information as information of which
the owner or agent is uncertain and set out the reasons for
that uncertainty, and, where the owner or agent does so, no
penalty shall be imposed under section 243T in relation to
that information.
(2) Where the owner of goods or the agent of the owner is
uncertain whether, by reason of the omission of particular
information from a statement made in respect of those goods,
that statement might be regarded as misleading in a material
particular, that owner or agent may, by writing included in
the statement, specify the information that has been omitted
and set out the reasons for uncertainty concerning the
effect of its omission, and, where the owner or agent does
so, no penalty shall be imposed under section 243T in
relation to that omission."

15. Hence, for example, where an importer or his agent is uncertain about the correct classification of goods, there is an opportunity to identify to ACS the nature of the uncertainty without incurring the risk of the imposition of a penalty under s.243T. In addition to the procedures contained in s.243V, there is also available to an importer or his agent the opportunity to apply for a tariff classification advice (a "TCA"). This was described by Olney J. in Collector of Customs v Visyboard Pty. Ltd. (1991) 13 AAR 246 at p 249 as follows:-

"In addition to the legislative provision for the amber line
entry of goods, the ACS operates an administrative procedure
known as TCA (tariff classification advice) whereby an
importer can obtain a written statement of advice of the
ACS's view as to the correct classification of goods. There
is no statutory basis for this procedure and the advice
given is not binding on the ACS but if the advice is later
found to be incorrect, and as a result additional duty is
levied, as a matter of administrative policy, no penalty
will be imposed by reason of any false or misleading
statement made in reliance on the TCA."

16. In 1986 when the green line system was introduced paragraph 229(1)(i) of the Act provided:-

"(1) The following goods shall be forfeited to the Crown:
...
(i) All goods in respect of which an entry, invoice,
declaration, answer, statement or representation which is
false or wilfully misleading in any particular, has been
delivered, made or produced."

17. In Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 the High Court held that "false" in paragraph 229(1)(i) meant purposely, deliberately or intentionally untrue: (per Deane, Dawson and Gaudron JJ. at p 29). As a result of this decision there was, in effect, no sanction available to ACS in respect of incorrect entries where the error was unintentional or where it arose out of negligence or other circumstances falling short of fraud. This then led to a series of amendments to the Act in 1989. Paragraph 229(1)(i) was deleted so that the risk of forfeiture as a consequence of a false or misleading statement was wholly removed. In its place s.234 was amended to make it an offence to -

"knowingly or recklessly:
(i) make a statement to an officer that is false or
misleading in a material particular; or
(ii) omit from a statement made to an officer any
matter or thing without which the statement is
misleading in a material particular."

The amendment also provided for a penalty upon conviction not exceeding $5,000 and a further penalty of twice the amount of duty payable on the relevant goods.

18. At the same time sections 243T, 243U and 243V were introduced into "Part XIII - Penal Provisions" as "Division 4 - Penalty for making false statements etc". In his second reading speech the Minister described these three new sections as an "administrative penalty regime". It is quite clear that it was intended that the penalty contemplated by s.243T could be imposed without proof of intention or recklessness. The following extract from the second reading speech indicated how the Minister compared paragraph 234(1)(d) on the one hand with ss.243T, 243U and 243V on the other.

"the existing customs act offence provision for the making
of a false or misleading statement is replaced with a new
offence provision dependent upon proof of intent or
recklessness rather than strict liability (amendment no.11,
New clause 23, new paragraph 234(1)(d)). The penalty upon
conviction for the redrafted offence, where the relevant
misstatement was made in respect of the amount of duty
payable in relation to particular goods, is an amount not
exceeding the sum of $5000 and twice the amount of the duty
payable on the goods.
This penalty level is to be compared to the lesser penalty
level proposed for a false or misleading statement under the
administrative penalty regime proposed in amendment no.11,
(New clause 23A, new sections 243T, 243U, and 243V) which
makes actionable the fact of a false or misleading
statement; ie. Where an error is made which results in a
short-payment of duty, a penalty duty (calculated at twice
the difference between the amount of duty payable on the
goods, and the amount which in fact was paid) may be
imposed. The penalty duty may be imposed by the fact of an
error; no intention or recklessness need be proved."

19. Whether the 1989 amendments have achieved all their objectives was not argued on this appeal and it would not therefore be appropriate to express any concluded view on the matter. I do however note that the presence of the words "whether knowingly, recklessly or otherwise" in paragraph 243T(1)(a) would appear to be unnecessary to give effect to the intention stated in the second reading speech and might even be thought to be contradictory to that stated intention; as against that however, Olney J, was of the opinion in the Visyboard case that "... s.243T applies equally in the case of an honest mistake as well as cases involving fraud or recklessness". (p 248)

20. In the course of its reasons the Tribunal found, as a matter of fact, that neither the applicant nor its agent intended to deceive the ACS. This finding was the basis of two of the applicant's grounds of appeal. It claimed that, inconsistently with that finding, the Tribunal held that:-

(I) "the applicant or its agent nevertheless had a 'capacity to
avoid making such a statement' and should have sought a
tariff classification advice"
and
(II) "there was a risk of revenue loss that would have been
relevantly reduced had a 'voluntary admission' been made
within the meaning of s.243U(4)(a)."

21. The subjects of "capacity to avoid" and "voluntary admission" were re-cast in a third ground of appeal in these terms:-

"Where an importer and its agent are found as a matter of
fact to be entirely innocent of any intentions to deceive
the Customs Service and there is a 'bona fide dispute', as a
matter of law, as to the correct classification of goods, it
was not open for the (Tribunal) to hold adversely to the
applicant that:-
(a) There was a 'capacity to avoid making a
statement that was false and misleading' within
the meaning of s.243U(4)(c); or
(b) There was the basis for the making of a
voluntary admission within the meaning of
s.243U(4)(a)."

22. The Tribunal stated in paragraph 8 of its reasons that it was common ground that s.243V and "the amber line" had not been invoked nor had there been any attempt to obtain a TCA. The applicant submitted that this statement disclosed an error on the part of the Tribunal. The argument was to this effect: if, as was allegedly the case here, the customs agent had no doubt about the classification of the peanuts, then he had no cause to use the amber line or to seek a TCA; hence it could not be said, against the interests of the applicant or his agent, that they failed to make use of one or other or these provisions. Such a proposition would only apply in exceptional circumstances; to accept it, without close enquiry, would amount to a licence in carelessness; so long as one was unthinking and uncaring, one would have no doubts or misgivings and therefore no uncertainties that would justify the use of the amber line. That cannot be right. There might be cases where a competent customs agent holds a firmly entrenched view about the correct classification of certain goods but that does not mean that he is correct; and an intelligent, experienced agent would well know that genuine mistakes have been made and will continue to be made. Despite a genuinely held belief about the correct classification, agents and importers should be well aware of the fact that they might still be wrong and the particular circumstances of the case may, upon inquiry, lead to the conclusion that recourse to the amber line "or a TCA classification should have been implemented.

23. In my opinion, it is quite consistent for an importer or his agent to have a firmly held view about the correct classification of certain goods, yet, out of caution, seek the protection of the amber line or a TCA. They would know, and if they did not know, they ought to know, that their classification would, in the majority of cases, be accepted by the ACS by being passed down the green line; they would likewise know that if their classification was wrong and the Revenue suffered a loss it was their mistake that was the cause of the loss.

24. In any event, there was, in this case, evidence before the Tribunal in the form of a letter dated 7 November 1989 from the applicant to the ACS which stated that the agent had contacted the applicant enquiring "whether these goods were cooked". This indicates, on the one hand, that the agent was aware of the fundamental difference in the two classifications but, on the other hand, that he (the agent) was personally unaware of the condition of the peanuts. The letter went on to add that the agent sought an opinion from an "independent nut manufacturer/processor". However details of that opinion were not supplied; if it favoured the applicant, then one would have expected the evidence to have been before the Tribunal in the "classification" hearing. In the same letter the applicant stated:-

"We confirmed (sic) that information from supplier indicated that the
peanuts have been electrically roasted, shaken during the process to
prevent burning and then blanched by machines."

25. But the only such information from the supplier was that obtained after the ACS had issued and served the four penalty notices. In my opinion this argument lacks both legal and factual merit. The findings of the Tribunal did not extend to a finding that the agent and the applicant had "no doubts" about the correct classification of the nuts; in fact, the contents of the letter of 7 November 1989 strongly point to a lack of personal knowledge on the subject at the time when the goods were entered for clearance into home consumption. To say, as the Tribunal said in paragraph 14 of its reasons, that the agent "steadfastly maintained" that its classification was correct does not address the agent's state of mind or knowledge; it merely acknowledges the attitude taken by the agent without enquiring into the reasons for that attitude.

26. For these reasons I do not perceive any error on the part of the Tribunal in referring to the failure on the part of the applicant (by its agent) to take advantage of the amber line and a TCA. Both were there to be used. In this case, as in every case, it was a matter of judgment in deciding whether it was necessary or desirable to make use of the facilities. The attendant risk in making that judgment lies with the importer or his agent as the Tribunal has made clear on several occasions. The immediate consequence of the introduction of the green line system was and is that "much greater reliance (is) placed on the efficiency and honesty of customs agents": Re Dong Holdings Pty. Limited. and Comptroller-General of Customs (Decision No.6543 published 21 December 1990). The new system calls for greater care and accuracy. As the Tribunal said in Re Denver Sporting Distributors and Comptroller-General of Customs (Decision No.6536 published 20 December 1990):-

"The self-regulatory system is combined now with the
incentive of the administrative penalty to ensure that
accurate information is provided which is essential for the
maintenance of the integrity of the self-regulatory system."

27. Mr Dwyer, counsel for the applicant, when dealing with the question of voluntariness and the failure by the applicant and its agent to make any admission to the effect that the statements had been false or misleading, relied on the following passages from Visyboard's case:

"In this case the error in classification resulted from an
honestly, and firmly, held view conscientiously arrived at
by a competent customs agent. No adverse inference should
be drawn from the failure to voluntarily admit to the
error." (p 252)

28. His argument was that the applicant in this case should have been treated in the same fashion. I reject this argument for two reasons; first, as I have already pointed out, there were no comparable findings of fact to the effect that the applicant's agent had erred as a result of "an honestly, and firmly, held view conscientiously arrived at...". Secondly, the argument for the applicant has confused the last sentence in his Honour's remarks. In the particular circumstances of each case, the Comptroller (and on review, the Tribunal) is called upon to have regard (inter alia) to whether there has been a voluntary admission. The purpose of this exercise is to determine, after having regard to all material factors, whether the applicant will benefit from any remissions and, if so, the extent of those remissions. In assessing all relevant circumstances that touch upon or concern the presence or absence of an admission, the Comptroller (or the Tribunal) may positively make some finding of fact which will react either against the applicant or to the credit of the applicant. However a decision that a particular issue will not be held against the applicant does not therefore mean that some opposite conclusion is to be held in his favour.

29. In the present case it was, therefore, within the competence of the Tribunal to find, as it did, that the applicant's agent did not voluntarily admit that the statements were false. It was also within the competence of the Tribunal to bring that matter to account when it considered, in totality, all aspects of the four subject matters that are referred to in sub-s.243U(4). In proceeding in this fashion the Tribunal did not draw an adverse inference against the applicant; on the other hand it was, no doubt, unable to give to the applicant the same credit as would have been enjoyed by another importer who immediately admitted to the making of a false statement. I do not see this as "disadvantaging" an applicant who chooses to dispute a classification and is unsuccessful.

30. I agree with the views expressed by the Tribunal in Re Kambrook Distributing Pty. Ltd. and Comptroller-General of Customs (1990) 12 AAR 361 at p 365 that an importer is entitled to take a "robust approach in exercising a right to maintain a contrary view of the matters in dispute" and that such conduct is not to be construed as an unfavourable factor. However importers and their agents must also realise that the exercise of such rights might deprive them of other benefits that could flow from an early admission if, in due course of time, it transpires that their views were incorrect.

31. It is not possible to create a formula or to lay down discrete guidelines that will determine the extent to which any remissions will be granted. For example, the Tribunal referred in paragraph 14 of its reasons to "a genuine dispute as to the correct classification of (the) goods". It stated, without quantifying it, that "due allowance" had to be made for the absence of a voluntary admission in such circumstances. In my opinion that was a perfectly proper approach.

32. The stand taken by the applicant deprived it of the benefit that might have flowed from its making a voluntary admission. The presence or absence of such an admission is to be considered by the Comptroller at the time when he is considering the application for a remission; in other words, an admission can be made at any time up to the making of the decision on the application for remissions. I am unable to agree with the views of the Tribunal to the contrary in Re Nagel and Comptroller-General of Customs (1990) 12 AAR 47 at p 51. If, as occurred in Nagel's case, the applicant made an admission only as a result of an enquiry from the ACS, the weight that is attached to that admission might be less than it would be if the admission had been unsolicited - but it would still be an admission to be taken into account to the credit of the applicant.

33. In discussing paragraph 243U(4)(b) and "the risk to the revenue" the Tribunal adopted the approach taken by the Tribunal in Nagel's case (supra) at p 52.

"In the Tribunal's view the risk to the revenue can be
looked at from two points of view viz:
a. Quantum of duty lost to the revenue as a result
of the omission and/or
b. The proportion of revenue lost compared to the
overall amount of revenue which would be charged
if disclosure had been made.
Depending on the circumstances either or both of the above
factors may be relevant."

34. In the circumstances of this case, bearing in mind that all four entries were destined to go down the green line, the Tribunal found that the risk of loss to revenue was "great" and that 100% of the duty would have been lost to the revenue if customs had not picked up the error. In some cases that have come before the Tribunal, the falsity in the statement has been an arithmetical or clerical error that has been picked up by the applicant or the agent and notified to ACS. This is not such a case. This classification was, as it transpired, an incorrect classification and it stands to reason therefore that it would be most unlikely that the applicant or the applicant's agent would have, independently of the trade inquiries that were initiated by ACS, became aware of the incorrect classification. In my opinion, the Tribunal was correct in classifying the risk as "great" and as being "towards the upper end of the scale".

35. The question of "capacity" to avoid the mistake has already been referred to and it was common ground that neither the applicant nor the agent had a history of convictions under paragraph 234(1)(d) or of liability for penalty under Section 243T (see paragraph 243U(4)(d)).

36. In my opinion the applicant has been unable to point to any error of law which would justify the interference of this Court. The decision of the Tribunal is therefore affirmed and the applicant is to pay the respondent's costs.

37. There is one further matter to which I wish to make reference. The Tribunal said in Re Walker (Australia) Pty. Ltd. and Comptroller-General of Customs (Decision No.6382 published 13 November 1990) in paragraph 14 of its reasons:-

"The words 'the applicant or the applicant's agent, as the case
requires' in s.243U(4)(a), (c) and (d) are designed in our view to
accommodate either the situation where an applicant (who does not
have an agent) makes a statement which offends the provisions of
s.243T, or the case where an applicant has an agent who makes such a
statement. The words 'as the case requires' are a clear reference
to whoever it was who made the offending statement. It is that
person's conduct which then attracts the attention of the subjective
provisions of s.243U(4)(a), (c) and (d). The remaining consideration
is set out in s.243U(4)(b) and it relates to the risk to the revenue
occasioned by the offending statement without any emphasis on who it
was who made the statement. The use of the expressions 'the
statement' in s.243U(4)(a) and 'such a statement' in s.243U(4)(b) and
(c) are clearly referring back to the earlier words of s.243U(4)
namely 'a statement, being a statement... made by the applicant or by
an agent of the applicant'. Clearly the legislation intends that
when remission of a penalty imposed under s.243T is being considered,
the delegate and this Tribunal shall only have regard to those
matters (i.e. s.243(4)(a), (b), (c) and (d) as they relate to the
applicant where the applicant is the maker of the offending statement
or those same matters as they relate to the applicant's agent where
the applicant has utilized the services of an agent. Quite clearly
Parliament had in mind these two types of situations in framing
s.243U as it did. The intention was, in our view, to attach the
matters relevant to remission of penalty to the applicant or the
applicant's agent whoever was the author of the offending statement
or in the words of s.243U(4)(a), (c) and (d) 'as the case requires'.
In the case before this Tribunal the author of the offending
statement was the applicant's agent."

38. In these proceedings the Tribunal considered that the demarcation between the applicant and his agent as explained in Walker's case was the correct approach and commented that the views expressed in Walker's case had been followed in Re Hewett and Comptroller-General of Customs (Decision No.6592, published 18 January 1991). I would not want it thought that my affirmation of the Tribunal's decision in these proceedings constituted an affirmation of the lengthy passage that has been quoted from Walker's case. The issue did not arise in these proceedings and it was therefore not mentioned by either counsel in argument.

39. For the reasons hereinbefore set out the decision of the Tribunal is affirmed; the applicant is to pay the respondent's costs.