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Tariff Concessions System

 

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

Paragraphs 4, 5 and 19 – reasonable uses rather than "sensible commercial uses"

Nufarm

Paragraph 57- the five questions for corresponding use

Riverwood Cartons

Page 6 – only one corresponding use required

Vestas

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

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

Kimberly-Clarke

The whole decision involves the applicant’s obligations

Scholle Industries

Paragraph 15 - definition of factory or works costs (s.269D)

Downer Edi Rail

Paragraphs 34-35 – Corresponding use does not mean identical, Paragraph 40, purpose of the TCO Scheme

Zetco

Paragraph 25 - Substitutable goods is a reference to the ultimate use of the goods, not the means by which it is achieved

Dow Agroscience

Paragraph 69 – there is no requirement for a sale in s.269E for the ordinary course of business test

Kenso Marketing

Paragraph 21 – consideration of substantial process (s.269D) Whole decision – full description of the goods

SMS Autoparts

Paragraphs 10 -16, particularly 16 – full description of the goods

Cameco Downunder

Paragraphs 21-25 – full description of the goods

JM Gillies

Paragraph 76 – stated use does not include all possible uses of the goods

Nordson Australia

Paragraph 7 – superior operation is not a consideration for substitutability

PowerLift Nissan

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

Interex

Paragraphs 19-20 – use of goods and corresponding use, Paragraphs 43-44 – substantial process, Paragraphs 50-55 - prepared to accept an order

Mattel

Paragraphs 12-14 – prepared to accept an order, Paragraph 26 – market test, Paragraphs27-29 – substitutability in the context of dolls

Toro

Interpretation of Tariff Concession Order – Specialised trade meaning or ordinary meaning

Brand Developers

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