[2025] UKUT 00142 (TCC)

One of the main issues in this appeal, beguiling in its simplicity, is whether solar cells used by [Canadian Solar] in the construction of solar panels, were “consigned from” Taiwan or whether they were consigned from Vietnam…

…we have come to the view that the words “consigned from Malaysia and Taiwan” in the 2016 Implementing Regulations, in circumstances in which the goods were originally consigned from Malaysia and Taiwan and where what occurs in the intermediate jurisdiction (Vietnam in the present case) is not sufficiently substantial to change the origin of the goods and thereby change the TARIC Code, means originally or indirectly consigned from Malaysia and Taiwan…

There is no misdescription of the products in question. The modules contain cells.

There is no violence done to the language “consigned from”. That language appropriately describes the consignment of modules from Vietnam and appropriately described the indirect consignment of cells from Taiwan via Vietnam. The language is appropriate because the work done in Vietnam is insufficient to alter the country of origin of the cells and so of the modules.

This approach is thus consistent with and pays proper regard to the decision in Renesola as to the country of origin of cells and modules.

Moreover, this construction avoids the evaders’ charter. The FTT was very much aware of this, as can be seen from the Decision at [106]:

The clear purpose of the 2016 Implementing Regulations was to prevent the circumvention of the 2013 Implementing Regulations. It is plain to us that the Council addressed the issue of the circumvention of the 2013 Implementing Regulations by introducing a blanket imposition of ADD and CVD in respect of all solar cells produced in Taiwan, save in respect of those produced by a specified list of Taiwanese manufacturers and where, in addition, there was compliance with the formalities specified in Article 1(2) of the 2016 Implementing Regulations, viz the production of a valid commercial invoice issued by the producer or consignor, on which appeared a declaration dated and signed by an official of the entity issuing such invoice, identified by his/her name and function.

This analysis is consistent with the approach put forward by Mr Elsen of the EU Commission in December 2020, set out at [8(11)]. This was that the additional TARIC code declared should be that of the exempt producer of the cells in Taiwan, with disclosure accompanying the declaration regarding the module manufacturer outside Taiwan.

The fact is that the Entries were both cells and modules at one and the same time. As the FTT noted, and as we have recorded at [8(6)], the Entries had (as part of their import paperwork) Cell Certificates of Origin, confirming a Taiwan origin.

The point is that it is possible to make modules in a variety of places (cells being made in one place, modules in another), and the rules need to be sufficiently flexible to accommodate this, consistently with the anti-dumping and anti-circumvention rules.

In fact, as the FTT’s reference to the declarations at Article 1(2) of the 2016 Implementing Regulations shows, required declarations do contain sufficient flexibility in this regard. As noted in [26(5)], Article 1(2) contains two forms of declaration. Before us, the parties focussed on the first declaration, when in fact they should have focussed on the second, which is appropriate to the present case. We have completed it, as best we can, below:

We fully appreciate that such a declaration is not ideally worded, and the two references to the same company in Taiwan may not be what the drafter intended. The form could equally well be completed by inserting the Vietnamese company into (ii), and stating that there is no TARIC Code, because the company is Vietnamese.