Legal precedents - Tariff Concession Orders

Tariff Concession System

The long history of the Tariff Concession System has produced many legal cases that have been argued extensively before the Federal Court or Administrative Appeals Tribunal.

While review decisions revolve around facts unique to a particular decision, there are a number of celebrated cases that have argued specific points of law, and for which TCS users often ask questions.

A number of these cases from the Federal Court and/or Administrative Appeals Tribunal are attached for students of the Tariff Concession System.

Users of the TCS may wish to engage professional advice should they disagree with any decision made by delegates of the Comptroller-General of Customs.

Federal Court decisions:

TOYOTA
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2012/2012fcafc0078
Paragraphs 4, 5 and 19 – reasonable uses rather than "sensible commercial uses"


NUFARM
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca0757
Paragraph 57- the five questions for corresponding use


RIVERWOOD CARTONS
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca0817
Page 6 – only one corresponding use required


VESTAS
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2015/2015fcafc0185
Corresponding use for made-to-order capital equipment may also include a consideration of notional or hypothetical capacity of the Australian industry to manufacture substitutable goods. Paragraph 81 – six considerations that must be determined in the affirmative to decide if made-to-order capital equipment produced by an Australian manufacturer is substitutable


BECKER VALE
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0525
Whether goods classified correctly under the Customs Tariff Act 1995 (Cth), availability of Tariff Concession Order, whether goods precisely meet description of tariff classification.

Administrative Appeals Tribunal reviews:

SCHOLLE INDUSTRIES
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1994/307.html?stem=0&synonyms=0&query=title(Scholle%20)
Paragraph 15 - definition of factory or works costs (s.269D)

DOWNER EDI RAIL
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2010/866.html?stem=0&synonyms=0&query=title(downer%20)
Paragraphs 34-35 – Corresponding use does not mean identical, Paragraph 40, purpose of the TCO Scheme

ZETCO
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1995/72.html?stem=0&synonyms=0&query=title(zetco%20)
Paragraph 25 - Substitutable goods is a reference to the ultimate use of the goods, not the means by which it is achieved

DOW AGROSCIENCE
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/568.html?stem=0&synonyms=0&query=title(Dow%20)
Paragraph 69 – there is no requirement for a sale in s.269E for the ordinary course of business test

KENSO MARKETING
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2008/42.html?stem=0&synonyms=0&query=title(kenso%20)
Paragraph 21 – consideration of substantial process (s.269D) Whole decision – full description of the goods

SMS AUTOPARTS
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1996/158.html?stem=0&synonyms=0&query=title(SMS%20)
Paragraphs 10 -16, particularly 16 – full description of the goods

JM GILLIES
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2014/868.html?stem=0&synonyms=0&query=title(Gillies%20)
Paragraph 76 – stated use does not include all possible uses of the goods

NORDSON AUSTRALIA
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1998/494.html?stem=0&synonyms=0&query=title(nordson%20)
Paragraph 7 – superior operation is not a consideration for substitutability

POWERLIFT NISSAN
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2010/34.html?stem=0&synonyms=0&query=title(powerlift%20)
Paragraph 7: - price, quality and superior operation are not considerations for substitutability, Paragraph 35 – CG cannot narrow wording of a TCO upon review of decision to refuse a TCO application

INTERTEX
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2001/377.html?stem=0&synonyms=0&query=title(Intertex%20)
Paragraphs 19-20 – use of goods and corresponding use, Paragraphs 43-44 – substantial process, Paragraphs 50-55 - prepared to accept an order

MATTEL
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2008/483.html?stem=0&synonyms=0&query=title(mattel%20)
Paragraphs 12-14 – prepared to accept an order, Paragraph 26 – market test, Paragraphs27-29 – substitutability in the context of dolls

TORO
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2014/187.html?stem=0&synonyms=0&query=title(Toro%20)
Interpretation of Tariff Concession Order – Specialised trade meaning or ordinary meaning

BRAND DEVELOPERS
http://www.austlii.edu.au/au/cases/cth/AATA/2015/215.html
whether eligible for concessional rate – whether description of TCO to be met precisely – whether goods may have additional features outside the description of the TCO – precise description of TCO to be met