Tariff Concession Order 0802908

The Order uses three principal statutory and administrative concepts to alter tariff treatment:

1. Declaration under s 269P of the Customs Act 1901

   • The Order is made "Under Section 269P of the Customs Act 1901" and is cast as a declaration by a delegate of the Chief Executive Officer. The TCO text reproduces that statutory vehicle as its legal basis for designating which imports attract the referenced Schedule 4 item.

2. Application of a Schedule 4, Part III item to specified goods

   • The central operative mechanism is the identification of goods in Column 1 and the instruction that those goods are "goods to which the item in Part III of Schedule 4 to the Customs Tariff Act 1995 specified in Column 2 of THE TABLE applies." The Order therefore performs a classificatory function: it binds a particular set of goods to the tariff treatment embodied in the listed Schedule 4 item (shown in the Table as item number 50).

3. Duration and revocation mechanics

   • The Order sets an effective start date ("This Order shall have effect from 21.02.08") and to govern its termination imports. It expressly defers termination to two statutory revocation procedures under the Customs Act (sections 269SC and 269SD) or to any date specified in Column 2. The Order therefore relies on standing statutory mechanisms for future revocation rather than setting a definite expiry date in the Table.

Technical content of the goods description is a further essential concept because the TCO links tariff treatment to a multi-part, conjunctive specification. Key features of the goods description, reproduced in the Order, include:

• The heading "PLANT, GROUT MIXING, comprising ALL of the following" sets up a composite appliance definition.
• The specification divides the plant into sub-assemblies (a) automatic mixing unit (with listed elements including "control panel, programmable logic controlled being integrated and operated by tunnel boring machine"; "(x) mixer, agitator and tank level sensors"), (b) cement silo components, (c) bentonite silo components, (d) transfer system components, (e) tunnel boring machine grouting equipment (with several features expressly described as "programmable logic controlled, being integrated and operated by tunnel boring machine" and "integrated and operated by tunnel boring machine"), and (f) foam grout generator unit with its own listed parts.
• The specification uses "AND/OR" and "AND/OR" style connective terms in places: e.g., "(x) electrical AND/OR communication cables" and in Part (f) "grout AND/OR foam mixing nozzle," which has drafting significance for scope.

Operationally, to be within the Order an imported product must match the textual specification. The Order ties tariff treatment to detailed functional integration (for example, multiple items are required to be "integrated and operated by tunnel boring machine"), which is an express criterion for classification under the Order.

The TCO is administrative rather than legislative in that it applies a pre-existing Schedule provision to a described set of imports; the TCO itself does not amend the Customs Tariff Act 1995 or Schedule 4 but declares the applicability of an existing Schedule 4 item to the specified goods.

Primary affected parties, as indicated by the instrument, are importers of goods matching the detailed specification set out in Column 1, and their customs brokers and agents. The Order's operation changes the tariff treatment of those specific imports by applying the item in Part III, Schedule 4 (listed as item number 50) to them.

More precisely:

• Importers who bring into Australia goods that fit the exact description "PLANT, GROUT MIXING, comprising ALL of the following" and the enumerated components and functional arrangements will be able to treat their goods as "goods to which the item ... in Part III of Schedule 4" applies for the period the Order is in force. Any financial consequence (duty payable, remission, concessional rate or other tariff effect) flows from the content of Schedule 4 item 50; the Order merely links the goods to that item.
• Customs brokers and declared agents preparing import entries will be the operational intermediaries who must determine whether a consignment matches the TCO description and therefore whether the Schedule 4 item should be applied when making the import declaration.
• The Commonwealth (through the Chief Executive Officer of Customs and the delegate) is a decision-maker: the TCO records that a delegate (Paul Mercer) made the declaration. The instrument identifies the statutory revocation mechanisms (ss 269SC and 269SD) under which the Commonwealth can revoke the TCO in future, which is a mechanism that could affect ongoing transactions.
• Suppliers and manufacturers (domestic sellers of similar plant) are indirectly affected in that the TCO can alter the relative cost of imported equipment versus locally sourced equipment by changing the tariff treatment of those imports. The TCO makes no statement about domestic manufacture, however; it only affects imports that meet the description.

Other parties are potentially affected by the strictness of the descriptive match required:

• Partial sets or single-listed components appear excluded where the description requires the plant to be "comprising ALL of the following." If a consignment contains only a mixer, or only a cement silo, that consignment will not satisfy the TCO unless it is part of a unit meeting the "ALL" criterion.
• The Order's repeated qualification that certain controls and sensors be "integrated and operated by tunnel boring machine" may exclude similar grout mixing plants that are free-standing or remotely operated but not integrated with a TBM.

Administrative actors who make decisions about application and revocation of this Order are the CEO's office (and named delegate) and the statutory revocation mechanisms in the Customs Act. The Order makes no provision for transitional arrangements or for claims after revocation , that is left to the statutory framework cited (ss 269SC and 269SD).

Finally, because the Order records its own operative date as 21 February 2008 but was signed and dated 16 May 2008, importers who imported matching goods between those dates would need to consider the Order's declared retrospective effect when determining their customs positions. The TCO itself makes that retrospective start explicit.

The TCO creates declaratory rights and practical duties by way of altering tariff treatment for specified goods; the text itself sets the scope rather than prescribing compliance steps. Extracted from the instrument, the following are the central duties and rights that arise from the Order:

Rights conferred

• A right to claim the application of the Part III Schedule 4 item specified in Column 2 (item number 50) for imported goods that precisely meet the instrument's Column 1 description, for the term the Order is in force. The Order declares that the goods "are goods to which the item in Part III of Schedule 4 ... specified in Column 2 ... applies." That declaration is the mechanism by which an importer is authorised to treat the goods as attracting the referred Schedule 4 item.

Duties and obligations implied by the Order

• Matching duty: Importers must ensure their goods match the descriptive specification. The instrument's description is specific and conjunctive ("comprising ALL of the following"), so a duty follows to verify and document that the imported item is indeed the multi-component plant described.
• Evidential duty: While the TCO does not set documentary requirements, the practical duty for an importer seeking to rely on the Order will be to keep records and to be able to demonstrate that the goods satisfy the description , for example, showing that components such as "control panel, programmable logic controlled being integrated and operated by tunnel boring machine" are present and operated as stated. The text itself makes "integration and operation by tunnel boring machine" a factual criterion; therefore, importers must be able to substantiate that fact if challenged.
• Classification duty: It is the importer's responsibility (through their agent) to apply the correct tariff treatment in the import declaration. The Order redirects that duty by tying classification to the Schedule 4 item where the product description matches.
• Temporal duty: The Order continues "in force until revoked under sections 269SC or 269SD ... or the date, if any, specified in Column 2." Where no date is specified, the importer must monitor for revocation; post-revocation compliance would require aligning to the current law and any transitional arrangements under the Customs Act.

Constraints and qualifications in the text that impose practical limits on rights

• The goods description is restrictive in a number of ways. The use of "ALL of the following" for the overall plant and the repeated qualifier "being integrated and operated by tunnel boring machine" for many controls and devices limits the right to those imported goods that demonstrably meet the functional integration test. Items that are only partly configured, or that have similar components but not integrated with a TBM, appear not to be within the TCO by its own terms.
• The use of "AND/OR" for some components (for example "electrical AND/OR communication cables"; "grout AND/OR foam mixing nozzle") broadens scope in specific respects, but the overall "ALL of the following" framework remains the principal gating condition.

Delegation and decision-making rights

• The Order is signed by Paul Mercer as "Delegate of the Chief Executive Officer." That records the executive delegation of decision-making authority under s 269P to a delegate who made the declaration. The power to revoke the Order is reserved to the statutory mechanisms in the Customs Act (ss 269SC and 269SD), not to the TCO itself, which therefore imposes an ongoing administrative check through those sections.

What the Order does not itself do (important absences)

• The TCO does not set out the economic content of the Schedule 4 item it applies (e.g., it does not state whether Item 50 reduces duty, provides a complete remission, or confers another benefit). The substantive rights in monetary terms therefore derive from external Schedule 4 text, which is not reproduced in the TCO.
• The TCO does not prescribe documentary form, compliance processes, or audit procedures. Those obligations, if any, arise from the wider customs and administrative law framework, not from this instrument's text.

In short, the Order establishes an administrative right to treat specified goods as those covered by Schedule 4 item 50, but that right is bounded tightly by the textual goods description and by the statutory revocation procedures it references.

The TCO text itself does not specify penalties, sanctions, or enforcement procedures. It is a declaratory instrument that attaches a Schedule 4 item to described goods. The only enforcement-relevant content in the Order is the explicit tie to the statutory framework , sections 269SC and 269SD of the Customs Act 1901 , which are the routes mentioned in the instrument for revocation. The Order’s enforcement implications therefore derive indirectly from the broader Customs Act and administrative practice, not from any provision of the TCO itself.

What can be inferred from the instrument:

• The Order creates an entitlement (to apply the referenced Schedule 4 item) which, in practice, an importer would only be able to rely upon at the point of import declaration. If an importer falsely claims benefit under the Order for goods that do not match the description, enforcement would depend on customs investigative, audit, and penalty powers that the Customs Act and related legislation empower. The TCO does not restate or alter those powers.
• The instrument’s requirement that goods be "comprising ALL of the following" and that some components be "integrated and operated by tunnel boring machine" supplies a factual standard that Customs can use to test claims. Non-conforming goods would be outside the scope of the Order and, if a concession were incorrectly claimed, customs could reject the concession claim and apply duty or other enforcement responses under the Customs Act framework.

Revocation and temporal enforcement

• The Order expressly continues until revoked under ss 269SC or 269SD, or until any date specified in Column 2. This means that an administrative revocation under those statutory sections will terminate the TCO's effect prospectively (and potentially with transitional consequences under the Customs Act); the TCO itself does not specify the effect of revocation for past transactions. Enforcement or retrospective adjustment of past import entries would be governed by the statutory provisions referenced and general customs law, not the text of the TCO.

Administrative record and audit risk

• The Order’s two-dated structure (operative start date of 21.02.08 and signature date of 16 May 2008) invites attention to timing of import declarations and to whether the concession was claimed in the interim. While the TCO declares a start date that is earlier than signature, the text does not address consequences for misclaimed entries prior to the signature date; those outcomes depend on the broader enforcement architecture.

Absent details

• Because the TCO does not include penalty provisions, one must consult the Customs Act and associated penalty schedules and administrative guidelines to determine specific sanctions for false or incorrect claims. The Order’s text provides the factual gate for legitimate claims; enforcement and penalty questions are left to the statutory enforcement framework external to the TCO.

The Order explicitly situates itself within the statutory framework of the Customs Act 1901 and the Customs Tariff Act 1995. The text identifies the legal instruments and provisions with which it interacts; however, the Order does not re-state those external provisions. From the text, the following interactions are specified:

Primary statutory interaction

• Customs Act 1901: The Order is made "Under Section 269P of the Customs Act 1901" and refers to revocation under sections 269SC or 269SD. Those references make the TCO an administrative instrument operating inside the Customs Act decision and revocation architecture. Any enforcement, review, or revocation will follow the procedures and standards set out in those Act provisions, which the Order itself does not reproduce.

Secondary statutory interaction

• Customs Tariff Act 1995: The Order applies "the item in Part III of Schedule 4 to the Customs Tariff Act 1995 specified in Column 2." Therefore the Order does not itself determine the substantive tariff treatment; it links the imported goods to the legal content of Part III, Schedule 4, item number 50 in the Customs Tariff Act. The economic and tariff consequences flow from that external item.

Operational and administrative interactions

• The Order interacts with the customs declaration and classification process by providing an administrative basis for classifying the described goods under a specified Schedule item. Customs officers, importers, and brokers must therefore reconcile the TCO description with the classification codes, tariff entries and concession items used in import declarations. The TCO contains an apparent tariff classification reference in Column 1 (the left-most table cell shows a numeric grouping displayed as "8 474 .31 .00"), which appears to be a tariff heading/classification notation. The TCO nonetheless directs that the final tariff treatment is the application of the Schedule 4 item shown in Column 2.

Limits of interaction stated in the instrument

• The Order does not amend the Customs Tariff Act 1995 or Schedule 4; it operates by declaring that a given set of goods are to be treated as goods to which an existing Schedule 4 item applies. Thus the TCO is a point-specific administrative device that relies on the substantive content of the referenced Acts.

Implications for other regulatory regimes

• The Order’s text contains no reference to other regulatory regimes such as customs valuation rules, permits, Australian standards, quarantine (biosecurity), or workplace health and safety. Those regimes might still apply to an imported plant in practice, but the TCO neither addresses nor modifies any obligations under those regimes. Any compliance duties under those external laws remain distinct and must be satisfied independently of whether the TCO applies.

Practical interaction points left to users

• Because the TCO does not reproduce the text of Schedule 4 item 50, a user must read the Customs Tariff Act 1995 to determine the exact tariff treatment conferred. Similarly, the TCO’s revocation mechanisms and any consequences of revocation must be understood by reference to sections 269SC and 269SD of the Customs Act rather than the order itself.

In summary, the Order is an administrative connecting link between a detailed goods description and a pre-existing Schedule 4 tariff item. Its legal interactions are limited to identifying the statutory provisions that authorise its making and revocation and identifying the Schedule item that supplies the substantive tariff rule; it does not alter or displace the content of those external provisions.

The text of the TCO as provided contains its own transactional metadata but does not record subsequent amendments or historical changes to the Order itself. From the document we can extract the immediate chronological facts recorded by the instrument:

• Effective operative date: The Order states it "shall have effect from 21.02.08." The Order therefore establishes 21 February 2008 as its commencement date.
• Signature and delegate date: The document is signed and dated "16 May 2008" by Paul Mercer as "Delegate of the Chief Executive Officer."
• Administrative operation code: The Order contains the operation reference "Op. 21.02.08 - TC 0802908" which repeats the operative commencement date and the TCO file/transaction number.

The document does not show any later revocations, amendments, expiries, or replacement orders, nor does it include any marginal notes identifying subsequent administrative action. The Order itself contemplates future amendment or termination by stating it will "continue in force until revoked under sections 269SC or 269SD of the Act, or the date, if any, specified in Column 2." No date is specified in the Table's "Last date of effect" column; that absence indicates an open-ended grant subject to revocation under the statutory mechanisms.

Therefore, the amendment history available from this text is:

• Creation and commencement: declared under s 269P, effective 21 February 2008;
• Signing/recording: dated 16 May 2008 by Paul Mercer, delegate of the CEO;
• No recorded subsequent amendment or revocation is present in the provided text.

If an authoritative amendment history or current status is required (for example, to verify whether the TCO remains in force or has since been revoked or expired), the TCO text instructs that one must consult the revocation records under the Customs Act mechanisms or official registers maintained by the administering agency. The instrument itself contains no further amendments, revocation entries, or subsequent dates.

The TCO document supplied contains no references to judicial or administrative decisions, appeals, reviews, or litigation connected to this specific order. It does not name any cases, nor does it provide references to tribunal or court proceedings.

Accordingly:

• There are no cases cited in the instrument that relate to its making, scope, interpretation, or revocation.
• The text does not report any challenges, disputes, or determinations that have affected the Order.

Because the TCO text is silent about litigation, any assertion about disputes, appeals, or judicial interpretation of this particular TCO would require consulting external legal databases, tribunal records, or administrative review logs. The Order itself contains no litigation history and does not supply procedural details on appeals or review rights relating specifically to the TCO; those matters would be governed by the general review provisions of the Customs Act and administrative law, which are not reproduced in this document.

For a user requiring litigation history , for example, to determine whether the TCO’s descriptive boundaries have been the subject of contested classification , the appropriate next step is to search case law and administrative decision records referencing "TC 0802908", TCO number "0802908", or the described goods specification, and to review any determinations or audit decisions made by the agency under the Customs Act.

The TCO contains drafting features and factual predicates that create specific practical risks and issues for importers and advisers. The key "gotchas" that arise from a close reading of the instrument are:

1. Conjunctive "ALL" requirement

   • The plant is described as "PLANT, GROUT MIXING, comprising ALL of the following." The use of "ALL" makes the concession (i.e., the link to Schedule 4 item 50) contingent on the imported item being the full multi-component plant. Importers who import only some of the listed modules (for example a standalone cement silo, or a single mixing unit without the tunnel boring machine integration) risk being outside the TCO scope.

2. Functional integration and operation by tunnel boring machine

   • Several listed items are qualified as "being integrated and operated by tunnel boring machine" or "programmable logic controlled, being integrated and operated by tunnel boring machine." This is a factual test. A plant that is not integrated with, or operated by, a TBM , even if functionally similar , does not meet that criterion and therefore would not fall within the TCO. Importers must be able to show integration and operational interdependence with a TBM if relying on the TCO.

3. Use of "AND/OR" within a conjunctive structure

   • While some components are permitted in an "AND/OR" relationship (for example "electrical AND/OR communication cables"), those broadenings do not override the overall "ALL of the following" test. Care is needed: presence of alternative components permitted by "AND/OR" still requires the rest of the listed items to be present if the global "ALL" remains a gate.

4. Component-level specificity and numbering

   • The goods are itemised at a fine-grained component level (mixers, agitators, air compressors, stabiliser pumps, tanks, sensors, flowmeters, cleanup devices, etc.). Import declarations and supporting documentation must reconcile the actual components shipped with each listed element. Substitutes, minor omissions, or differently described components could create a dispute about whether the imported plant matches the textual description.

5. Apparent tariff classification number formatting

   • The Table’s left cell includes a numeric string displayed as "8 474 .31 .00." It appears to be a tariff classification notation but its spacing and formatting could generate administrative confusion if mirrored exactly in import declarations. Advisers should cross-reference the TCO number (TC 0802908) and the textual description rather than rely solely on that numeric string, which could be a typographic rendering of a standard tariff heading (but the TCO does not clarify).

6. Retrospective start date vs signature date

   • The Order indicates operation "from 21.02.08" while the delegate signed it on 16 May 2008. This creates potential complexity: importers who imported relevant goods between 21 February and 16 May 2008 may have already made declarations without the benefit of the TCO, or may have claimed the concession in advance. The TCO does not state how to treat already-processed entries; practitioners should be alert to audit or amendment exposure for entries made in that period.

7. No last date of effect given

   • The "Last date of effect" column in the Table is blank. The TCO therefore continues until revoked under the statutory mechanisms rather than expiring on a stated date. Importers must monitor for revocation under ss 269SC/269SD to know whether the TCO remains available for future imports.

8. No substantive tariff content in the Order

   • The TCO does not state what Item 50 of Part III, Schedule 4 actually confers. Users must not assume a particular level of duty relief or concession from the TCO alone; the economic outcome depends on the content of the referenced Schedule item, which is not reproduced in the instrument.

9. Administrative evidence standard

   • The TCO’s qualifiers (integration, programmable logic control, operation by TBM) are factual features that will be tested by customs auditors. Importers should not assume that product brochures or partial technical specifications are sufficient; concrete evidence of integration and operation relationships will be decisive, and the Order does not prescribe what evidence suffices.

10. Narrowness for aftermarket parts and spares

• The TCO describes a complete "plant" with multiple subsystems; spares or replacement components shipped separately are unlikely to meet the "ALL" requirement and therefore would not attract the same Schedule 4 item under this Order. Advisers must be careful when classifying single components, retrofit kits, or spare parts.

These are not legal conclusions about whether particular goods will or will not qualify , they are practical traps inherent in the Order’s wording that require technical and documentary attention by importers and advisers.

The TCO sets the descriptive criteria for which imported goods may be treated as goods "to which the item in Part III of Schedule 4 ... specified in Column 2 ... applies." Compliance therefore requires matching the import to the text and following routine customs declaration practice. The following steps, grounded in the instrument’s text, outline practical compliance measures:

1. Confirm textual match with the Column 1 description

   • Before claiming the Schedule 4 item, verify that the imported consignment is the multi-component "PLANT, GROUT MIXING, comprising ALL of the following" and contains the listed components across parts (a) to (f) as set out in the Table. The text requires the plant to comprise all specified elements; therefore check each listed item:
     • (a) Automatic mixing unit with mixer, agitator, air compressor, stabiliser pump, water pump, water tank, stabiliser tank, accelerator tank, control panel (PLC integrated and operated by TBM), mixer/agitator/tank level sensors.
     • (b) Cement silo with horizontal silo twin screw conveyor feed, reverse pulse dust filters, vibrators, level detection device.
     • (c) Bentonite silo with bag splitter and screw conveyor.
     • (d) Transfer system with transfer pumps, pressure gauges with switch, cleanup ball charge device.
     • (e) Tunnel boring machine grouting equipment with injection pumps, pressure gauges with switch, transfer pumps, PLC-controlled pressure sensors integrated and operated by TBM, flowmeters PLC-controlled integrated and operated by TBM, cleanup ball catcher, mixing nozzle, touch screen control panel, on/off grouting control, electrical and/or communication cables.
     • (f) Foam grout generator unit with air flow meter, foam generator, foam flow meter, grout and/or foam mixing nozzle, operation panel PLC integrated and operated by TBM.

2. Document integration with tunnel boring machine where required

   • For elements expressly described as "being integrated and operated by tunnel boring machine" ensure there is documentary proof showing the integration. Acceptable documentary evidence will typically include technical integration diagrams, factory acceptance test reports showing operation as part of a TBM system, manuals specifying PLC integration, or commissioning records demonstrating integrated operation. The Order itself makes integration a textual criterion, so be prepared to produce concrete evidence if audited.

3. Use correct TCO reference in declarations

   • When lodging import declarations, reference the TCO identifier (TC 0802908) and the TCO number (0802908) along with sufficient description to show the imported goods match the Column 1 textual definition. The Table also contains an operation reference "Op. 21.02.08 - TC 0802908" and the delegate signature/date; including these references in the supporting file will assist customs officers in correlating the claim with the TCO.

4. Reconcile tariff classification details

   • The Table displays a numeric notation in the left cell ("8 474 .31 .00") which appears to be a tariff classification string. While the TCO ties the goods to Schedule 4 item 50, ensure the customs declaration aligns the tariff heading and the applied Schedule item consistently. If there is ambiguity in the numeric notation as printed, rely on the TCO number and the detailed item description to justify the claim.

5. Monitor for revocation and changes

   • The TCO continues "until revoked under sections 269SC or 269SD of the Act, or the date, if any, specified in Column 2." Because the "Last date of effect" field is blank, do not assume permanence. Maintain an administrative watch for revocation notices under the Customs Act and for any updated TCOs or replacement instruments. Where revocation occurs, adjust future import declarations accordingly and check whether retrospective consequences or adjustments might apply under the Customs Act.

6. Be cautious with partial consignments and spare parts

   • If importing only part of the plant, single components, or spare parts, do not assume the TCO applies: the Order requires the full plant described ("ALL of the following"). Classify such consignments on the basis of their own description and applicable tariff provisions rather than relying on the TCO.

7. Retrospective period handling

   • The TCO states operation from 21 February 2008 but is dated 16 May 2008. For imports occurring between those dates, check your records and liaise with customs to confirm whether the concession was claimed or should be claimed. If entries were made without the concession, consider whether amendment of the import declaration or an application for re-assessment is appropriate under the statutory framework (those procedures lie outside the TCO text itself).

8. Retain technical and commercial files

   • Keep technical specifications, engineering drawings, test and commissioning reports, purchase orders, bills of lading, and communications with the supplier that show the plant composition and TBM integration. The TCO’s detailed component list and integration criteria mean that audits will hinge on technical proof.

9. Seek clarification where descriptions diverge

   • If a product has similar elements but differs in integration approach (for example, PLC control that is not integrated with a TBM), do not assume similarity is sufficient. Seek an advance ruling or a customs classification decision if you need certainty; the TCO itself does not provide dispute resolution mechanisms inside its text.

10. Coordinate declarations with customs brokers and counsel

• Ensure brokers use the correct TCO references and that legal or customs counsel review documentary evidence to support the factual assertions required by the Order.

These compliance steps derive directly from the TCO’s textual requirements. The TCO does not prescribe forms, time limits for supporting documentation, nor penalty regimes , those remain part of the broader customs administrative law framework.