[2025] UKUT 00142 (TCC)

The TARIC Code refers to modules consigned from a particular place, not originating from a particular place: see [17]. In this, the TARIC Code follows the language of the anti-circumvention rules (see [26(1)], which could have (but does not) referred to products originating from Malaysia and Taiwan, but to (and here we are quoting from the words underlined in [26(1)]) modules and key components (i.e. cells) “consigned from Malaysia and Taiwan”.

In addition to not using the language of origin, the rules differentiate between modules and cells.

In these circumstances, Mr Lyons, KC (for Canadian Solar) contended that the interpretation issue was straightforward in Canadian Solar’s favour. The effect of the multiple different TARIC Codes described at [17] was that the importer was obliged to pick (of these various Codes) one Code that best described the Entry, these Codes obliging the importer to pick one that best fit with both product type and country of consignment. This is the point we make at [19].

Given (i) the nature of the products in question (modules) and (ii) their country of consignment (Vietnam), a responsible importer could only select this TARIC Code.

The fact that work on cells so as to convert them into a module does not change the origin of the product (which remains that of the cells: see Renesola described at [20] and [21]) fell – according to Mr Lyons, KC – into the “correct but irrelevant” category. The fact is that:

The rules do not render place of origin a relevant factor, referring instead to consignment from a place.

The TARIC Codes (see [17]) draw the clearest of distinctions between modules (e.g. Codes ending …49 and …53) and cells (e.g. Codes ending …71 and …73).

However, we accept Ms Vicary’s argument that this would effectively be using the anti-abuse doctrine to disapply the words of the charging provision. Moreover, in construing the words “consigned from Malaysia and Taiwan” in Article 1(1) regard must be had to the purpose of the 2016 Implementing Regulations which was, as we have noted, to prevent the circumvention of the 2013 Implementing Regulations. To interpret the words “consigned from Malaysia and Taiwan” as meaning, effectively, “directly consigned” from those countries would throw the doors wide open to abuse. Mr Lyons’ argument that such abuse could be countered by the Halifax doctrine left unanswered the practical question how it would be possible for HMRC to enforce the 2016 Implementing Regulations if, on his interpretation, they could be so easily side-stepped.

[79] It seems to us that it is impossible for us to conclude that Megasol should determine the outcome of these appeals. There is no detailed reasoning in the CJEU’s Order, the point was not substantively addressed and the facts were not fully laid out (e.g. whether Megasol had complied or had failed to comply with necessary exemption formalities required by the 2016 Implementing Regulations). Moreover, the Court dismissed the application on the basis that Megasol had not shown that the regulations were, as Ms Vicary put it, causing it a problem. On that basis, the Court considered that the point being raised a hypothetical situation in respect of which Megasol was seeking a declaratory decision and therefore had not established that it had a sufficient interest in bringing the proceedings. We consider that it is unsafe to treat Megasol as authority for any proposition other than that Megasol had simply failed to demonstrate how the 2016 Implementing Regulations were or might be applicable to it and, therefore, the application was inadmissible.

[80] Accordingly, we do not consider that that Megasol determines the position in these appeals.