Customs Act 1901 s.17AA1, s.33A(1), s.167

Customs Tariff Act 1966 _ Schedule 1 Part II sub-items 70.13.2, 99.03

Administrative Appeals Tribunal Act 1975 s.29, s.41, s.43

The Tribunal decides to set aside the decision under review and to remit the matter for reconsideration in accordance with the following direction which it hereby gives, namely that the matter be considered upon the footing that the subject goods, while properly classified within sub-item 70.13.2, were entitled to admission duty free by virtue of the application of item 36 in Schedule 2 to the Customs Tariff Act 1966.

1. This application for review involves a small amount of money but some of the issues involved are important and the bringing of the matter before the Tribunal has proved to have been justified.

2. While on a visit to Italy the applicant went to Venice. While there he went to a large number of souvenir shops where cheap pottery and glassware, crowded together, were on display. Then he went to the Galleria San Marco where he found displayed some much superior pieces. Displayed on one shelf, and occupying a little over one square metre of shelf space, was a work made up of two pieces, namely a glass horse and foal. The horse and foal are certainly a handsome example of a process whereby the finished work is drawn to its final shape from a lump of molten glass. There seems to be no doubt that the work is a 'one-off' piece, individually created by a master craftsman, although there is no reason to suppose that the craftsman in question has not made somewhat similar objects before or since. The applicant purchased the horse and foal for $A.259.17. A certificate given to him at the time of purchase read, in translation:

'This is to certify the originality of the Work Horse Group as a glass sculpture created by his own hand by Master Craftsman Pino Sigmoretto in the year 1980 in Murano, and bearing his autograph signature engraved at the bottom.

3. The subject goods being too heavy to carry, they were posted back to Australia. On arrival they were assessed for customs duty and sales tax under sub-item 70.13.2 of Part II of Schedule 1 to the Customs Tariff Act 1966 by Parcels Post assessment number 2656. A letter to the applicant from the respondent dated 14 October 1980 explains the assessment details as follows:

Declared value _ $US300.00

Exchange rate _ 1.1577

Value for duty _ $A259.13

Country of origin _ Italy

Tariff item _ 70.13.200

Rate _ Free + 2% / Exempt

Primage / 27 1/2 % S Tax

Amount to pay _ Duty $ 5.18

Sales Tax $87.22

-----

$92.40

The amount of sales tax payable is determined by the following

Sale Value = (Value for Duty + Duty + Primage) + 20%

vide Section 4, Sales Tax Assessment Act (Number 5)."

4. At the date of entry for home consumption part (b) of sub-item 70.13.2 was applicable to:

'*Glassware not falling within item 70.19 of a kind commonly used for table, kitchen, toilet or office purposes, for indoor decoration, or for similar uses:

A rate of duty of two percent was prescribed therein for goods of Italian origin vide s.17AA of the Customs Tariff Act 1966.

5. The importer, now the applicant, contended that the subject goods were correctly classified within item 99.03, to which I shall shortly refer, and purported to pay the relevant amount of duty claimed under protest. At the hearing Mr Towill, who appeared for the respondent, drew attention to deficiencies in what had been done to effect payment under protest within s.167 of the Customs Act 1901. I make no further comment on this matter. As will appear, the conclusion to which I have otherwise come on the merits makes it unnecessary to do so. As the applicant, minded to pay under protest, did precisely what an officer advised him to do, it would in fact have been most unfortunate if his rights had depended upon the form of the payment under protest.

6. At all events the applicant, at least purporting to pay under protest, paid the duty assessed on the subject goods, in the sum of $5.18. He claimed that the goods were to be correctly classified within item 99.03, whereunder the position would have been that a rate of duty of 'free' would be attracted to goods of Italian origin. At the date of entry for home consumption, item 99.03 applied to:

'Original sculptures and statuary, in any material.'

'Mass-produced reproductions, or works of conventional craftsmanship of a commercial character do not fall within item 99.03.'

'Goods falling within an item in this Chapter do not fall within any other item in this Schedule.'

7. The applicant having applied to the Tribunal for review of the decision made by the respondent, the latter gave further consideration to the matter. Having done so, the conclusion was arrived at that the subject goods were 'handicrafts' within the meaning of that term as used in Customs By-law No.S2527. Copies of this by-law, and of By-law No.2528 which took effect from 1 September 1980 were supplied to the Tribunal. The respondent treated By-law No.S2527 as being applicable, but there is not enough information before me as to the relevant dates to indicate which of these by-laws would apply if at all. Since the differences between the two are immaterial for present purposes it is unnecessary to pursue the point. It is however necessary to set out in more detail the background to the respondent's approach to the matter subsequent to the making of the application for review.

8. The purported decision to apply the 'handicrafts' by-law to the subject goods did not in any event affect the classification of the goods within sub-item 70.13.2 of Part 11 of Schedule 1 to the Customs Tariff Act 1966. Goods classifiable within sub-item 70.13.2 attract a rate of duty of two percent by the operation of sub-section 17AA(1) of the Customs Tariff Act 1966. Customs By-law No.S2527 (mentioned above) was made pursuant to Item 36 of Schedule 2 to the Customs Tariff Act 1966 which provides a 'Free' rate of duty in respect of 'Handicrafts, as prescribed by by-law'. Sub-section 33A(1) of the Customs Tariff Act 1966 provides as follows:

'33A(1) Where an item in Schedule 2 applies to goods and the amount of duty applicable to the goods under that item is less than the sum of the amount of duty ascertained in respect of the goods in accordance with Part 11 of this Act and the amount of any primage duty and the amount of any support duty that, but for this section, would be payable in respect of the goods, then, subject to this section _

(a) the duty payable under Part 11 of this Act in respect of the goods is, in lieu of the amount that but for this section would be so payable, the amount of duty applicable to the goods under the item in Schedule 2 that applies to the goods or, if no duty is applicable to the goods under that item, no duty is payable in respect of the goods under Part 11 of this Act; and

(b) no primage duty or support duty is payable in respect of the goods." (underlining supplied)

Applying the provisions of paragraph 33A(1)(a) of the Customs Tariff Act 1966 the subject goods would thus be entitled to duty free admission by virtue of the application of item 36 in Schedule 2 of the Customs Tariff Act 1966 to them.

9. The respondent purported to vacate the original decision to impose duty at a rate of two percent in respect of the subject goods and made arrangements to refund to the applicant the Customs duty which he had paid under protest in respect of the subject goods. The sales tax position in relation to the subject goods, were this decision validly made, would remain unchanged as 'duty' for the purposes of the Customs Act 1901 relates only to duties of Customs (section 4) and does not, as a matter of interpretation, include sales tax. Sales tax in the present case is tied to the classification of the goods pursuant to the provisions of the Customs Tariff Act 1966. Item 68(3)(c) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 exempts from sales tax imported goods consisting of 'original sculptures and statuary, being goods to which item 99.03 ... applies'. Goods classifiable within sub-item 70.13.2 are, however, not exempt from the payment of sales tax and are liable to sales tax under s.5 of the Sales Tax Assessment Act (No.5) 1930 at the rate of duty of 27-1/2 percent. The respondent continued to maintain that the proper tariff classification of the subject goods is within sub-item 70.13.2, the consequence of the above sales tax provisions being that the sales tax levied on the subject goods would remain.

10. The matter is not free from difficulty. On one view the respondent, by conceding that no duty is payable, has removed the original dispute with the effect that the only remaining dispute is whether the goods should be admitted 'free' under item 99.03 of Schedule 1, or 'free' under Item 36 (Schedule 2 and the appropriate by-law). Such a dispute is not amenable to the jurisdiction of the Tribunal and it was contended by Mr Towill that the Tribunal now lacks jurisdiction accordingly. The decision that is reviewed by the Tribunal, it was correctly pointed out, is a demand for duty, and it was said that there was no longer any demand for duty. It could also be said that for the Tribunal to proceed to hear and determine the matter would not be justified where a decision as to the matter the subject of the application for review has really become irrelevant. The comment could also be made that had the respondent originally allowed entry of the goods free under the by-law now considered to be applicable, there could have been no demand for duty and the Tribunal's jurisdiction could never have arisen.

11. Despite the apparent cogency of these contentions, I have come to the conclusion that the Tribunal has jurisdiction in this matter. The reason for this is that I consider that once the applicant applied for review of the decision in question no power to deal with the matter remained in the respondent. The decision, upon such application being made, became a matter for the Tribunal and subject to be determined pursuant to all of the provisions of Part IV (ss.25 to 46 inclusive) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), and to the provisions of the legislation from which the respondent derived his powers and functions. The whole thrust of the provisions of Part IV of the AAT Act is that the decision is before the Tribunal for review and that the Tribunal must make its own decision about the matter. Section 41 of the AAT Act is not inconsistent with this proposition. It provides, subject to provisions enabling the Tribunal in defined circumstances to make 'stay' orders, that '...the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision'. But this does not mean that, in the absence of some power conferred in that behalf, the decision-maker can purport to vary or annul the decision or to substitute some other decision for that originally made and now under review. On the contrary, it seems to assume the preservation of that original decision and the continuing effect of it subject to any order that may be made.

12. That what I have said represents the correct view is supported by what was said in the joint judgment of Stephen, Murphy and Aickin JJ in the decision of the High Court in R v Moodie and ors; Ex parte Mithen (1977) 17 ALR 219. There one M had applied pursuant to s.10 of the Student Assistance Act 1973 (Cwth) to an 'authorized person' for Tertiary Education Assistance. The application having been refused reconsideration of that decision was sought pursuant to s.22 of the Student Assistance Act. That reconsideration having been unfavourable to M, he requested, pursuant to s.23 of the Student Assistance Act, that the decision be referred to a Student Assistance Review Tribunal for review. This was done, but by the time the matter came on for hearing before the Tribunal the authorised person had indicated, in the light of new information, willingness to amend the decision so as, in effect, to accept the eligibility of M for a grant. The headnote to the report indicates what happened at the hearing:

'The matter came on for hearing before the Tribunal and there were then present the authorized person and M. M swore that he was under the impression, because of the letter from the authorized person (a copy of which was sent to him by the Tribunal), that there was no longer any contest in the matter and that he believed that the hearing would not proceed and would not be an appeal, but merely a formal meeting to inform him that the authorized person had changed her decision. Before the Tribunal the authorized person made no further statement and M made submissions to the Tribunal about the incorrectness of a previous decision referred to during the hearing by the Chairman, on the footing that when that decision had been given the Tribunal did not have before it the relevant document concerning the degree course issued by the CIT. The Chairman requested M to read out a written submission which he had sent to the Department of Education on 16 May 1977. M swore that no comments except his own were made concerning the application of reg 34(3)(c). M swore that the Tribunal retired for about five minutes and then informed him that the previous decision of ineligibility was upheld; and that a few days later he received the written decision of the Tribunal. M did not say that he made any application to the Tribunal for adjournment to enable him to consider his position in the light of what he regarded as a change in the circumstances by reason of the hearing having proceeded, nor did he object to the matter proceeding.

M sought in the High Court of Australia an order nisi for a writ of certiorari, alternatively a writ of mandamus, on the ground that the Tribunal was wrong in law and that it had not acted in accordance with the requirements of natural justice.'

13. The High Court held, for reasons that need not concern me here, that the Tribunal had been correct in its ruling as to the eligibility of M for a grant. What is relevant is that when the Court turned to consider the question of natural justice and the conduct of the proceedings before the Tribunal it said this, at p.225 of the report:

'With regard to the submissions that the Tribunal should have made a consent order either varying or setting aside the decision of the authorized person, and itself allow the applicant's application for assistance under the Act, the proceedings before the Tribunal were not a contest between the authorized person and the applicant. They were an appeal from the decision of the authorized person, an appeal by way of re-hearing. We think it clear that in the light of ss 10, 22 and 23 an authorized person becomes functus officio once he has forwarded the request for review under s 23 to the Chairman of the Tribunal together with all the records and other relevant papers. At that stage there is no further function under the Act for the authorized person to perform. The letter sent by the authorized person to the Tribunal neither was nor purported to be a decision. Once the review had been instituted then it is only the Tribunal itself that had any function to perform or any powers to exercise under the Act. What the Tribunal must do is to give its own decision accompanied by its own reasons for its findings. It would not, on this view, be open to the Tribunal to make an order by consent of the authorized person and the applicant. Its functions can only be discharged by giving its own decision. In truth the authorized person cannot be regarded in any real sense of the term as a party to the review proceedings, capable of or authorized to settle them by agreement with the applicant. This is quite contrary to the scheme of the Act and, in our opinion, the Tribunal was not empowered to do any of the things, the failure to do which by consent is said to constitute a denial of natural justice.'

14. When ss.22, 23 and 26 of the Student Assistance Act are studied it is seen that, in an admittedly simpler form, they reflect quite closely the powers and functions of the Administrative Appeals Tribunal. Section 22 is a reconsideration provision such as is found in a number of Acts conferring jurisdiction on the Administrative Appeals Tribunal, a convenient example being found in s.154 of the Superannuation Act 1976. No such provision appears in the Customs Act, but the requirement of reconsideration is of no moment for present purposes. Section 23 provides for referral of the decision to the Tribunal for review. The provision is not in identical terms to s.29 of the AAT Act but the concept of transmission of the decision for review is the same. Section 26 in in less complex terms than s.43 of the AAT Act, but again its effect is very similar. Its terms should be set out:

'26(1) A Review Tribunal that reviews a decision of an authorized person shall, after due consideration of the matter, give a decision in writing _

(c) setting aside the decision and making a decision in substitution for the decision so set aside.

(2) The Tribunal shall give reasons in writing for its decision and its reasons shall include its findings on material questions of fact.

(3) A decision of an authorized person as varied by a Tribunal, or a decision made by a Tribunal in substitution for a decision of an authorized person, shall, for the purposes of this Act, other than this Part, be deemed to be a decision of the authorized person, and shall, unless the Tribunal otherwise directs, have effect, or be deemed to have had effect, on and from the date on which the decision under review had effect.'

15. There are thus many similarities between the process of review provided for by the Student Assistance Act and that provided for by the AAT Act. It may however be too much to say that a decision-maker always becomes functus officio once an application for review pursuant to the AAT Act is lodged with this Tribunal. It is more appropriate to ask whether in any particular instance of the Tribunal's jurisdiction the decision-maker has had conferred upon him a residual power to revoke or vary the decision in question. That there are such instances may be concluded from the decision of the High Court in Swartz v The Commonwealth of Australia (1959) 102 CLR 34 in relation to Commonwealth employees' compensation, a case which however involved the jurisdiction of a Court, as to which see also Re Gordon and Commonwealth of Australia (1977) 1 CCN 46 Note 17. Also, the AAT Act differs from the Student Assistance Act in that the decision-maker is to be a party to the proceedings (see, e.g. s.30 of the AAT Act) and is to perform various functions in relation to the review. Certainly a decision-maker has, under the AAT Act, a continuing role in relation to, for instance, compliance with s.37 of the AAT Act and appearance before the Tribunal to support the decision under review at what is in essence a re-hearing, a role which is plainly contemplated by the AAT Act. It is presumably to be implied that a decision-maker may negotiate with an applicant for the purpose of pursuing the possibility of an agreed solution. The functions of a decision-maker to which I have referred however arise from the AAT Act or from the legislation from which the decision-maker derives his powers and functions. It seems to me that in the absence of power suitably conferred, it is not open to a decision-maker to purport to revoke, vary or otherwise amend a decision once it has become subject to the process of review. What is relevant for present purposes is that I have not been able, from the relevant legislation, to identify the presence of any such power in the present respondent. In so saying I have not omitted from consideration the provisions of s.163 and s.167(5) of the Customs Act.

16. One other matter may be mentioned, although not directly relevant in the present proceedings. I have already referred to negotiations between the parties. The power of the Tribunal to dispose of an application for review properly brought before it is not however terminated by the mere consent of the parties. The Tribunal's function is to arrive at a decision, and the consent of the parties, particularly where they are legally represented, will be a valuable aid to that process but will not abrogate the role of the Tribunal. A reading of the precise terms of s.34 of the AAT Act (agreement of the parties) and s.42A(1) (dismissal of an application by consent) so far from detracting from these propositions in fact emphasises their validity.

17. I now turn to the merits of the matter. Division 21, within which Chapter 99 falls, and Chapter 99 itself, are each headed 'Works of Art, Collectors' Pieces, and Antiques'. The applicant set much store by the words 'Works of Art'. He had satisfied himself that the subject goods were a work of art, and had assembled some worthwhile written opinion supporting his conclusion. But I must emphasize that the question before me is not whether the goods are a 'work of art'. Rule 1(1) of the Rules for the Interpretation of Schedule 1 to the Customs Tariff 1974 provides:

'The titles of Divisions, Chapters and Sub-Chapters in Part II of this Schedule are provided for reference only, and shall not be used for the purpose of interpreting this Schedule.'

'For the purpose of ascertaining whether goods fall within an item, sub-item, paragraph or sub-paragraph or whether an item, sub-item, paragraph or sub-paragraph applies to goods, regard shall, subject to sub-rule (3) of this rule, be had to the terms of items (including sub-items, paragraphs and sub-paragraphs) and of notes to Divisions and Chapters and, except where those terms otherwise require, to rules 2, 3 and 4 of these Rules.'

18. I consider that it is plain enough that the subject goods do fall within item 70.13.2. Taking the relevant words of that item, they should be classified as 'glassware ... of a kind commonly used ... for indoor decoration' and as 'a statuary figure'. They also constitute, in my opinion, or at least may be assumed to constitute, 'original ... statuary' within item 99.03, as Mr Towill in fact conceded. If they fall within item 99.03, note 4(1) to Chapter 99, which I have cited above, would give item 99.03 predominant effect. Furthermore, if item 99.03 applied, not only would the subject goods enter free of duty, they would not attract sales tax either, because there would be no value for duty or duty of customs upon which s.4 of the Sales Tax Assessment Act (No.5) 1930 could operate. But are they 'mass-produced reproductions or works of conventional craftsmanship of a commercial character' so as to be removed from item 99.03?

19. I do not consider that the subject goods are 'mass-produced', nor do I consider that they are 'reproductions'. Indeed Mr Towill did not contend that either of these descriptions applied. I have however concluded, for reasons set out below, that they are 'works of conventional craftsmanship of a commercial character'. But does the expression 'mass-produced' apply not only to 'reproductions' but also to 'works of conventional craftsmanship'? Grammatically, I see no reason why it should not. On the other hand, 'mass production' and 'craftsmanship' appear to be inconsistent notions, which suggests that it was not intended that 'mass-produced' should apply to any more than the word 'reproductions'. There is thus a possible ambiguity. Having raised this difficulty at the hearing, I was asked by Mr Towill whether it would be appropriate for me to look at what are commonly referred to as 'the Brussels Notes' or 'the Explanatory Notes'. I received the relevant passages from the Explanatory Notes, reserving the question whether it is proper to refer to the Notes for the purpose of interpreting the Tariff. In fact the Notes make it clear beyond doubt that the phrase 'mass-produced' was intended to refer only to 'reproductions'. It is stated in the Notes to Section XXI heading 99.03:

(a) ornamental sculptures of a commercial character.

(b) works of conventional craftsmanship of a commercial character (ornaments, religious effigies, articles of personal adornment, etc).

(c) mass-produced reproductions in plaster, staff, cement, papier mache' etc.

Such articles are classified according to their constituent material (heading 44.27 for wood, heading 68.02 or 68.16 for stone, heading 69.13 for ceramics, heading 83.06 for base metal, etc).'

20. The High Court has accepted in D. & R. Henderson Pty Ltd v Collector of Customs (1974) 48 ALJR 132, a decision of Mason J, and in Wooltex Pty Ltd v Goldwater, a decision of Murphy J (unreported, 1977), that the Customs Tariff Act was intended to give effect to the Brussels Convention on Nomenclature for the Classification of goods in Customs Tariffs ("CCCN") in enacting a uniform Tariff. If it is accepted that the Customs Tariff Act purports to give effect to the CCCN then regard may be had to the terms of that convention as an aid to interpreting the Act when it is ambiguous: (See per Mason J in Henderson's Case at p.135.) The terms of the CCCN provide strong support for the conclusion that the Explanatory Notes may be looked at as a 'secondary guide' to the interpretation of the Customs Tariff Act. The CCCN clearly displays that the driving principle behind the Convention was the need to establish a uniform Tariff. Article IV(c) of the CCCN provides that the Explanatory Notes are to be compiled as a guide to the interpretation of the Nomenclature. Nevertheless, the Explanatory Notes are at the most a secondary guide to the interpretation of the Customs Tariff Act, and Courts and tribunals in Australia look first to the existing municipal law when interpreting the Customs Tariff Act.

21. For present purposes, I need take the matter no further than to say that while I accept that the Explanatory Notes may be employed as a secondary guide to the interpretation of the Tariff, my own unassisted view in any event is that the phrase 'mass-produced' refers only to 'reproductions', so that reference to the Explanatory Notes is unnecessary. In fact, of course, my own view is confirmed by reference to the Explanatory Notes. I therefore proceed on the basis that the question is whether the subject goods are 'works of conventional craftsmanship of a commercial character' so as to be excluded from item 99.03.

22. There seems to me to be little doubt that the works are of a commercial character. They were made for sale and put up for sale in a commercial way, and were bought by the applicant. But are the subject goods 'works of conventional craftsmanship'? 'Craftsmanship' is not too difficult a concept. Webster's Third International New Dictionary gives for 'craftsman':

'1. One who practices some trade or handicraft (as a bricklayer, woodcarver, plumber): ARTISAN

2. One who creates or performs with skill or dexterity esp. in the manual arts (jewelry made by Old World craftsman...'

The Random House Dictionary of the English Language gives, again for 'craftsman':

'1. skill; dexterity: The silversmith worked with great craft.

3. an art, trade, or occupation requiring special skill, esp. manual skill: the craft of a mason'

The Shorter Oxford Dictionary gives, for 'craftsman':

'1. a man who practises a handicraft; an artisan...

'6. a calling requiring special skill and knowledge; esp. a manual art, a Handicraft'

These meanings seem to me to admit that there may be a fine line between artistry and craftsmanship. Perhaps it would be more accurate to say that artistry and craftsmanship overlap. However it should be expressed, any account of the history of Venetian glass-making affirmatively establishes it as a craft and the work of the Venetian glass-makers as 'craftsmanship', of a high order. Glass-making in Venice can be traced back to the seventh century AD, if not to Roman times, but its greatest achievement came with the manufacture of the clear glass, based on a soda-lime recipe decolourized by manganese, known as 'cristallo'. The glass-makers had removed to the island of Murano in 1291 because of the fire risks to the city associated with their processes, but their greatest era began from about the middle of the 15th century. Such was the importance of the industry that Murano glass-workers were forbidden to leave Venice under pain of severe penalties to themselves and their families. Ultimately, however, some did and their skills were thus proliferated to other countries, in particular to the Netherlands. Venetian glass production commenced to decline late in the 17th century, a decline which continued through the following century and which was completed with the fall of the 'Serene Republic' in 1797. It was revived however in about 1860 and from about 1866 quantities of glass from Murano were exported, or bought by tourists. This brief history is derived from the Encyclopaedia Britannica 15th ed. Vol 8; the Encyclopaedia Americana, International Ed. Vol 12; the Encyclopaedia of World Art (McGraw-Hill); the Thames and Hudson Encyclopaedia of the Arts; and the Complete Encyclopaedia of Antiques. The range of works produced at Murano included not only drinking glasses and other vessels but also ornaments, looking-glasses, beads, candelabra, and imitation precious and semi-precious stones. While famous for glass blowing, the Murano craftsmen's skills were not so confined. Interestingly enough for present purposes, the Encyclopaedia of Antiques (above) contains (Plate 181A on p.501) a picture of a table lamp, dating from the late 16th or early 17th Century, in the form of a horse. It appears to be made of blown and not, as here, of drawn glass, but it indicates the range of decorative work produced, and indicates also that the subject goods represent the inheritance of a tradition based partly on materials and inventiveness of design but based also, perhaps to a very significant degree, on manual dexterity. That they are a work of craftsmanship is in my opinion undoubted.

23. The more difficult question is whether the subject goods are works of 'conventional' craftsmanship. The word 'conventional' should for present purposes be taken to have the meaning which is given to it in relation to art and craftsmanship. In this context the Random House Dictionary gives:

'4. art. a. in accordance with accepted manner, model or tradition. b. (of figurative art) represented in a generalized or simplified manner'

'2b(1) lacking spontaneity, originality or individuality: TRITE (to distinguish ... that which is organic, animated, expressive, from that which is only ... derivative, inexpressive"

2c(1) in accordance with a mode of artistic representation that simplifies or provides symbols or substitutes for natural forms: ABSTRACT"

'...in Art, consisting in, or resulting from, an artificial treatment of natural objects; following traditions:

24. Not all of these meanings are, I consider, apposite here. In my opinion the sense in which the word 'conventional" is used, in the context and in association with the word 'craftsmanship', corresponds most closely to the last meaning given in the Shorter Oxford Dictionary, and cited above, namely 'following traditions'. It is not to deny the artistic merit or the originality of individual works of the Murano workers in glass to say that in following their craft they are, as already indicated, the inheritors of a long tradition. Their skills have been handed down (which is what is meant by the word 'tradition') from generation to generation, and the subject goods are the product of that tradition. In this sense therefore, taking the two words together as I consider they should be, it does not deny the skill of the craftsman, or the originality of a particular example of his work, to find, as I do, that the subject goods are a work of 'conventional craftsmanship', representing a craft carried on according to longstanding tradition and convention.

25. It follows that I consider that the respondent correctly classified the subject goods within sub-item 70.13.2. It only remains to consider the question of by-law admission. I have found that it was not open to the respondent to alter the decision the subject of the review, namely the demand for duty, once application in that behalf has been made. Once however the Tribunal is seised of the matter, I consider that, having as it does pursuant to s.43(1) of the AAT Act all the powers and discretions conferred on the person who made the decision, the powers of the Tribunal should be taken to include all the powers reposed in the respondent up to the time of making the application for review. The respondent up to that point had the power to decide that the subject goods should be admitted pursuant to By-law No. S2527, (or No.S2528 if that is the appropriate by-law), and the Tribunal should now address itself to the question whether such admission should apply. I have no doubt that it should. Clause 3 of the by-law provides:

'Subject to paragraphs 4, 5 and 6, Item 36 in Schedule 2 to the Customs Tariff Act 1966 applies to handicrafts that the Collector is satisfied:

(1) are hand-made goods, that is to say, goods that have been made by one or more of the following processes:

(2) are wholly or in chief part by weight of materials traditionally used in the production of handicrafts; and

(3) have attained, by reason of being hand-made, an artistic or decorative character generally comparable with traditional hand-made products of the country in which the goods were made.'

'Handicrafts' is defined in Webster's Third International New Dictionary as:

'...an occupation in which articles are fashioned totally or chiefly by hand especially with manual and often artistic skill usually as either a trade or a hobby.'

The Random House Dictionary of the English Language gives:

'...an art craft or trade in which the skilled use of one's hands is required.'

And it is to be noted that the definition of 'craftsman' cited from the Shorter Oxford Dictionary in paragraph 22 above incorporates the word 'handicraft'.

26. Finally, I think it clear that the subject goods were made by hand; that they were made wholly by weight of a material, namely glass, traditionally used in the production of handicrafts; and that they have attained, by reason of being hand-made, an artistic or decorative character generally comparable with traditional hand-made products of the country in which the goods were made. The conditions of admission pursuant to the by-law are therefore in my opinion fulfilled.

27. In the result, the decision of the Tribunal will reflect the conclusions which were ultimately reached by the respondent, but it is not pedantic to require that the correct legal pathways be followed. The preferable course, in view of the complexity of the matter, is to set aside the decision under review and to remit it for reconsideration in accordance with a direction that the matter be considered upon the footing that the subject goods, while properly classified within sub-item 70.13.2, were entitled to admission duty free by virtue of the application of item 36 in Schedule 2 to the Customs Tariff Act 1966. The effect of this is that the liability of the applicant for sales tax is unaffected, a result which is beyond the reach of the Tribunal.