Corresponding use
If an Australian producer objects to the making of a Tariff Concession Order (TCO) or seeks to revoke an existing TCO, they need to demonstrate their goods have a corresponding use to the imported goods.
Corresponding use does not mean the Australian goods need to be identical to the imported goods. It means that the Australian goods need to have at least one use that corresponds with the imported goods.
If manufacturers can demonstrate a corresponding use, it is possible their goods are substitutable for the imported goods, and the TCO application will be refused. However this can only be determined by a manufacturer submitting an application to the Comptroller-General of Customs on the Approved Form.
The Federal Court, in a decision in 2011 outlined a practical analysis to determine corresponding use:
- what are the TCO goods?
- to what use or to what uses are they put or can they be put?
- what are the goods claimed to be substitutable?
- to what use or to what uses are they put or are they capable of being put?
- are the uses of them corresponding uses?
If the answer to the last question is 'yes' then a case exists that the Australian goods are substitutable for the imported goods, and a TCO application may be refused, or an existing TCO may be revoked. If the answer to the last question is 'no' then it is unlikely that the Australian goods are substitutable.
You can refer to relevant legislation in the Customs Act 1901 at section 269B. This section provides the following interpretation:
Substitutable goods, in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put.
This is general advice only. Users of the Tariff Concession System may wish to obtain professional advice as required.
*Nufarm Australia Ltd v Dow AgrcoSciences Australia Ltd (No 2) [2011] FCA 757 (5 July 2011)
