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 Review 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 Review 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
Paragraphs 4, 5 and 19 – reasonable uses rather than "sensible commercial uses"
Paragraph 57- the five questions for corresponding use
Page 6 – only one corresponding use required
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
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 Review Tribunal reviews
The whole decision involves the applicant’s obligations
Paragraph 15 - definition of factory or works costs (s.269D)
Paragraphs 34-35 – Corresponding use does not mean identical, Paragraph 40, purpose of the TCO Scheme
Paragraph 25 - Substitutable goods is a reference to the ultimate use of the goods, not the means by which it is achieved
Paragraph 69 – there is no requirement for a sale in s.269E for the ordinary course of business test
Paragraph 21 – consideration of substantial process (s.269D) Whole decision – full description of the goods
Paragraphs 10 -16, particularly 16 – full description of the goods
Paragraphs 21-25 – full description of the goods
Paragraph 76 – stated use does not include all possible uses of the goods
Paragraph 7 – superior operation is not a consideration for substitutability
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
Paragraphs 19-20 – use of goods and corresponding use, Paragraphs 43-44 – substantial process, Paragraphs 50-55 - prepared to accept an order
Paragraphs 12-14 – prepared to accept an order, Paragraph 26 – market test, Paragraphs27-29 – substitutability in the context of dolls
Interpretation of Tariff Concession Order – Specialised trade meaning or ordinary meaning
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
