UT/2023/000023 - [2024] UKUT 00096 (TCC)

That then leads to the question of whether the appeal, insofar as it relates to the metal playpens and heavy duty playpens, should be remitted to the FTT for a fresh decision or decided by the UT. HMRC argue the case should be remitted for the FTT in order to make further relevant factual findings. Underlying that stance is HMRC’s concern that further findings of fact will be necessary, given its objection to Cozy Pet raising an alternative classification in respect of the Heavy Duty playpens (under Ground 10) to Heading 7304 (which applies to “Tubes, pipes and hollow profiles, seamless, of iron (other than cast iron) or steel”). HMRC object on the basis the new classification was not argued before the FTT and that Cozy Pet should not be allowed to argue it now as it is not simply a point of law but would, if it had been raised before, have affected the evidence before the FTT and the findings of facts made.

We agree with HMRC that permission should not be granted for this new point to be run for the reasons HMRC advance. The fact that the permission to appeal was granted on this point, in this case by the FTT, does not prevent a party challenging the taking of a new point on appeal. We would in any event struggle to see the relevance of this heading to the pet playpen products given the sorts of product mentioned in the explanatory note for this heading which Ms Brown helpfully took us to. (That refers to products under the heading including things such as line pipes of a kind used for oil or gas casing, drilling, boiler and condenser pipes, pipes used in car manufacturing, or scaffolding.)

In contrast, as between deciding between the competing headings that were squarely before the FTT (7314 as argued by Cozy Pet, and 7326 as argued by HMRC) the FTT heard the evidence advanced by the parties and made in our view sufficient findings of fact relevant to the headings. We see no reason not to determine for ourselves which of those competing headings applies and to do this on the basis of the findings made by the FTT. We also had the benefit of the photographic evidence the FTT used to make those findings.

Having considered that evidence and the FTT’s findings, we agree with Cozy Pet that the articles, whether the metal frame or Heavy Duty products, and which both comprise iron or steel wire grids welded at their intersections, fall into 7314 as fencing. It follows from what we have said above that it does not matter that the panels are sold in finished form and even if the HSEN contemplated that some minimum of processing or assembly were required in order to be regarded as such then this would be satisfied by the fact the panels require assembly to make them into fencing.

Given our conclusion that both the metal playpens and heavy duty playpens fall into 7314, it is not necessary for us to deal with Cozy Pet’s further argument that 7326 (which was restricted to iron or steel wire – defined as having a diameter less than 16mm) could not apply to the Heavy Duty playpens given the hollow nature of the framing and diameter of such framing of such products.

As regards which of the particular classification within 7314 the goods should go into, we note that there is a different classification depending on whether the product is zinc coated or not. The FTT did not make express findings on the coating but recorded (at FTT [24]) the appellant’s explanation in correspondence that some products were zinc coated and some were painted. Noting that both classifications 7314 31 00 (welded at intersection and zinc coated) and 7314 39 00 (“…welded at intersection… Other”) are 0% duty we leave it to the parties to agree, if necessary, which precise classification should be applied to the particular playpens in issue.