CUSTOMS CUSTOMS: IMPORTED CHEMICAL: LIABILITY TO DUMPING DUTY IN STATE TO WHICH SHIPPED FROM STATE OF ORIGINAL IMPORTATION BUT NOT IN ORIGINAL STATE OF IMPORTATION: WHETHER PREFERENCE TO ONE STATE OVER ANOTHER
CUSTOMS TARIFF (INDUSTRIES PRESERVATION) ACT 1921 s 8: CONSTITUTION s 99
The Comptroller-General of Customs has forwarded me the following minute for advice:
Hyposulphite of Soda of French origin is gazetted under section 8 of the Customs Tariff (Industries Preservation) Act 1921–1922, vide copy of Notice attached.
In accordance with this Notice–section 8 of the Act is applicable to French Hyposulphite of Soda only in instances where the landed duty paid cost of the imported chemical is less than the manufacturers’ selling price of the comparable Australian-made article.
Hyposulphite of Soda is produced by a manufacturer in Melbourne, but it is not produced elsewhere in Australia, so far as is known to the Department. The locally-produced chemical is sold to merchants in Melbourne at a delivered price of £15 per ton, but in the case of sales to Sydney merchants the price is £16.15 per ton, being the Melbourne price plus £1 for freight and 15/- for landing charges at Sydney.
A shipment of French Hyposulphite of Soda landed at Sydney at a duty-paid cost of £15.17.11 per ton would therefore be detrimental to the local industry, consequently dumping duty in accordance with the Gazette Notice (No. 229) would be chargeable thereon.
If however the shipment in question had been landed at Melbourne at £15.17.11 per ton the landed duty-paid cost would have been higher than the local manufacturers’ selling price at that port (£15 per ton) and as detriment would not exist under such circumstances dumping duty would not be payable.
The question therefore arises as to whether in the circumstances set out above the collection of dumping duty in one State and not in another is in conflict with the provisions of section 99 of the Constitution, and I should therefore be glad of an opinion on this aspect of the matter.
In pursuance of the notice issued under section 8 of the Customs Tariff (Industries Preservation) Act 1921–1922 and of sub-section (3) of that section the duty payable on hyposulphite of soda is the difference between the landed cost in warehouse in Australia plus percentage for profit and the Australian wholesale price of similar goods of Australian manufacture.
It appears that the Australian wholesale price applied by the Customs for the purpose of calculating duty on any shipment is that ruling at the place at which the goods are imported.
It follows in some cases–of which the present is an instance, that the dumping duty charged under the section differs at different ports; and even that dumping duty is charged at some ports and not at others. The effect, however, is to give the same measure of protection at all ports–i.e. the difference between the landed cost of the imported goods at the particular port, and the wholesale price at the same port of similar Australian goods.
I do not think that the practice violates section 99 of the Constitution. The rule is a uniform one, and the difference of treatment arises from external circumstances (see CSR Co. v. Irving, 1903 Q.S.R. 261; 1906 A.C. 360). There is ‘no preference of locality merely because it is locality’ (per Isaacs J., R. v. Barger, 6 C.L.R at pp. 105–9). Nor can it be said that the discrimen is–regardless of other circumstances–‘which State, or which part of a State?’
I have only advised in this Opinion on the precise question submitted.
[Vol. 23, p. 798]