Tariff Concession Revocation Order 09/2010 - Tariff Concession Order 0918948

The central concept is the tariff concession order (TCO), a mechanism under Part XVA of the Customs Act 1901 that allows the CEO to grant duty free entry for goods that are not domestically produced in a manner that would meet Australian demand. A TCO specifies the goods by tariff classification and description, and once made, the concession applies automatically to imported goods that exactly match the description. The concession is not a per entry application; it is a standing order. The instrument revokes an existing TCO and makes a substituted TCO. This is not a new concession but a renewal or replacement of an existing one. The goods are described exhaustively rather than by general category. The list is very long and specific: it includes items such as aprons, angles, armrests, axles, backings, bars, belts, bezels, bins, boards, body sides, bonnets, bosses, bows, boxes, braces, brackets, buckles, bugscreens, bulkheads, bumpers, buttons, cabs, cantrails, caps, cappings, channels, clamps, closets, collars, compartments, consoles, control panels, coverings, covers, cowls, crossmembers, cup holders, cups, curtains, dash, dashboards, deckplates, deflectors, desks, doors, ducts, ejectors, extensions, facings, fascias, fenders, fillers, firewalls, flaps, floorpans and boards, floors, frames, grilles, guards, guides, hangers, harnesses, headliners, holders, hoods, housings, inserts, insulator panels, isolators, lappers, lifts, linings, louvers, lugs, mats, mouldings, mountings, nets, overiders, pads, panels, pedals, pillars, plates, platforms, pockets, pivots, raceway, racks, rails, rearwalls, regulators, reinforcements, rests, retainers, rods, roofs, runners, scoops, screens, sheets, shells, shelves, shields, shrouds, shutters, sills, skids, skirts, sleepers, sockets, spacers, spoilers, stabilisers, stairs, steps, stiffeners, stoppers, straps, strips, struts, sun roofs, supports, tanks, tows, tracks, trays, trims, tubing, understructure, ventilators, vents, visors, walls, weldments, windows, and wings. The list is identical in both the revoked and new orders. Another key concept is the gross vehicle weight threshold: the trucks must be on road trucks with a GVW not less than 7.5 tonnes. That threshold excludes light commercial vehicles and passenger vehicles. The concession applies only to parts and accessories for trucks meeting that weight. The instrument also involves the concept of a revocation date: the old TCO is revoked from 22 April 2009, and the new TCO applies from that same date. That means no gap in coverage, but importers must update their references. The concept of delegation is important: James Buntine signs as a delegate of the CEO. Under the Customs Act, the CEO may delegate powers to make or revoke TCOs, and the instrument recites that authority. The use of Schedule 4 item 50 is another concept: that item is one of many in Part III of Schedule 4 to the Customs Tariff Act 1995, which lists concessional items. Item 50 typically covers certain goods for use in the automotive industry. Finally, the instrument is a legislative instrument but is not a regulation it is an administrative order made under the Act.

This instrument primarily affects importers of parts and accessories for heavy on road trucks. Any business that imports the listed components for trucks with a GVW of 7.5 tonnes or more must ensure that they claim the correct TCO number on import declarations. That includes truck dealerships, fleet operators, logistics companies, and independent parts distributors. Customs brokers and freight forwarders are also affected because they handle the classification and documentation for such imports. The instrument also affects domestic Australian manufacturers of the same truck parts. Because the TCO grants duty free entry, imported parts can undercut locally produced equivalents. Domestic suppliers face increased price competition if they cannot match imported prices. The instrument indirectly affects truck operators and end users because the cost of imported parts may be lower, influencing maintenance and repair costs. The instrument also binds Australian Border Force officers and customs officials who must verify that imported goods match the TCO description. They need to check the GVW of the truck for which the part is intended and confirm that the part is within the exhaustive list. The instrument may also affect original equipment manufacturers (OEMs) that produce trucks locally; they may source parts for assembly or aftermarket. If a local OEM relies on the concession, the revocation and replacement ensure continuity. The instrument is of interest to trade compliance professionals within companies that import truck parts. They need to update their internal systems to refer to TCO 0918948 instead of 0715785, and ensure that purchase orders and shipping documents reference the correct number. The instrument may also affect foreign suppliers who export truck parts to Australia, as their customers will require compliance with the concession requirements. The instrument has no direct effect on passenger car parts or on light truck parts because of the 7.5 tonne threshold. It also does not affect parts for off road trucks or other vehicles. The instrument is specific to tariff heading 8708.29.99, so goods classified elsewhere are outside scope. The instrument has been in force since 22 April 2009, so any importer who imported the listed parts between that date and the signing date on 9 June 2009 might have been unsure which TCO was current. The retrospective operation means that entries made between those dates should have used the new order. All importers are affected by the need to maintain accurate records of TCO numbers for any potential audit by the Australian Border Force.

The key right created by the instrument is the right to claim duty free entry for the described goods under Schedule 4 item 50, provided the goods are imported on or after 22 April 2009. That right is contingent on the goods exactly matching the description in TABLE B. The duty is on the importer to ensure that the goods are for on road trucks with a GVW of at least 7.5 tonnes. The importer has no automatic right to the concession if the goods fall outside the specified list or if the truck does not meet the weight threshold. The instrument itself imposes no new duties beyond those that already exist under the Customs Act 1901 and the Customs Tariff Act 1995. However, there is a duty to correctly identify the TCO number on the import declaration. Under customs regulations, an importer must state the TCO number when claiming the concession. If the importer uses the wrong number (such as the old 0715785 after 22 April 2009), customs may reject the claim or require amendment. There is also a duty to maintain supporting documentation that proves the goods meet the description and that the truck meets the GVW requirement. That might include manufacturer specifications, invoices, or type approvals. Customs also has a duty to administer the concession consistently and to provide guidance on interpretation. The instrument does not confer any right to import goods that are otherwise prohibited or restricted; it only affects duty rates. There is a right for importers to seek advance rulings on tariff classification or TCO coverage from the Australian Border Force. If an importer believes that a part is covered by the list but customs disputes it, the importer may seek internal review or appeal to the Administrative Appeals Tribunal. The instrument does not create any private rights of action against other parties. The duty to correctly apply the concession falls primarily on the importer. Customs brokers acting as agents have a duty to advise clients correctly. There is also a duty on the part of the delegate to have acted within power in making the revocation and substitution; any challenge would be on administrative law grounds. The instrument itself does not alter any other obligations such as safety standards or vehicle certification. The instrument does not impose any reporting or record keeping beyond that required by the Customs Act. In practice, importers should keep a copy of the TCO and the relevant pages of the Schedule 4 concession. The right to duty free treatment is valuable because the general customs duty rate on parts under heading 8708.29.99 is typically 5% or higher, depending on the country of origin and any free trade agreements. By using the concession, importers can save that duty.

The instrument itself does not contain any penalty provisions. However, it operates within the enforcement framework of the Customs Act 1901. If an importer claims the concession for goods that do not meet the description, or for a truck below the GVW threshold, that may constitute a false declaration. Under section 243T of the Customs Act, an importer who makes a false statement in an import declaration may be liable to pay an amount equal to the duty shortfall plus a penalty of up to 100% of the duty shortfall. There are also criminal offences for intentionally making false statements, with maximum penalties of 10 years imprisonment under section 243S. The Australian Border Force conducts post clearance audits and risk assessments. If an importer uses the wrong TCO number or claims the concession without having a valid TCO for the goods, customs may demand payment of the duty that was avoided. The statute of limitations for recovery of duty is generally four years from the time of import. There is also the possibility of prosecution for smuggling or evasion if the concession is used as part of a scheme. Compliance officers should be aware that the exhaustive list of parts creates a high risk: if a part is not specifically listed (e.g., a bracket that is called a "clip" but not listed), the concession does not apply. Customs may take the view that the list is exclusive. Enforcement will focus on ensuring that the goods are indeed for qualifying trucks. The GVW threshold is another source of enforcement risk. Customs may require evidence of the vehicle's gross vehicle weight rating, such as a compliance plate or manufacturer specification. If an importer cannot produce that evidence, customs may treat the goods as not covered. The instrument itself does not create a penalty for failing to update references from the old order, but using the old TCO number after 22 April 2009 could result in the claim being rejected. Customs may consider that as non compliance and require a fresh entry. In practice, penalties are most likely when there is a pattern of incorrect claims or when large amounts of duty are involved. The instrument does not provide any amnesty or transitional provisions for goods imported between the date of effect and the date of signing. Importers who declared goods under the old order during that period may need to amend their entries to avoid penalties. The enforcement approach is administrative rather than criminal for honest mistakes, but deliberate misuse can attract severe penalties.

This instrument is made under the Customs Act 1901 and refers to the Customs Tariff Act 1995. It is one of many tariff concession orders that operate alongside other schemes such as the Tradex Scheme, the TCO scheme for goods not produced in Australia, and the various free trade agreement preferences. The concession under Schedule 4 item 50 is independent of rules of origin under FTAs. If a part qualifies under both a TCO and an FTA, the importer can choose whichever results in the lower duty (usually zero under either). However, the TCO may be more specific. The instrument interacts with the Anti Dumping Commission Act 1975 and the Customs Act provisions on anti dumping duties. A tariff concession does not override anti dumping measures; if dumped goods are subject to anti dumping duties, those duties must still be paid even if the goods would otherwise be free under a TCO. The instrument also interacts with the Customs (Prohibited Imports) Regulations; the concession only affects duty, not import bans. Goods that are prohibited cannot be imported regardless of the TCO. The instrument interacts with the Automotive Transformation Scheme (now ended) and any past programs that provided assistance to vehicle manufacturers; those programs did not affect tariff classification but may have created parallel record keeping requirements. The instrument also interacts with state laws such as those on vehicle registration and roadworthiness. The GVW threshold in the TCO may relate to the vehicle's gross vehicle mass as defined in Australian Design Rules. That is a separate regulatory system administered by the Department of Infrastructure. If a truck's GVW is determined by state registration data, customs may rely on that. The instrument interacts with the general law of administrative decisions; it is a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977. An aggrieved person may challenge the validity of the revocation or the making of the new order. The instrument itself is not a law that imposes obligations on third parties beyond customs matters. It interacts with related TCOs covering other motor vehicle parts (e.g., for light trucks or passenger cars). If a part is for a truck just under 7.5 tonnes, a different TCO may apply. The instrument also interacts with the classification of goods under the Harmonized System. Tariff heading 8708.29.99 is a residual heading; goods that fall elsewhere (e.g., transmissions or engines) would need separate concessions. The instrument does not interact with competition law directly, but the effect of the concession on domestic manufacturers may raise issues of competitive neutrality, which is not a legal prohibition but a policy consideration.

The instrument is itself an amendment: it revokes one TCO and substitutes another. The revoked TCO had number 0715785 and was made on 10 December 2007. That earlier order had its own amendment history, which is not disclosed in this instrument. The new order carries number 0918948. The instrument does not indicate any intermediate amendments between 2007 and 2009. There is no record in this instrument of any earlier revocation. The date of effect for the revocation and the new order is 22 April 2009. The instrument was signed on 9 June 2009 and presumably registered on the Federal Register of Legislation shortly after. There are no subsequent amendments to this instrument recorded in the source. The instrument is a stand alone revocation. If there were later amendments, they would appear as separate legislative instruments. The instrument does not mention any transitional provisions, savings, or grandfathering for goods imported under the old order between 22 April and 9 June. That suggests that the replacement was intended to be fully retrospective. The amendment history of the underlying Schedule 4 item 50 is not part of this instrument. The Customs Tariff Act 1995 is amended from time to time, but those amendments would affect the item number or the conditions. This instrument is fixed as of 2009. The instrument also does not indicate whether it was subject to disallowance or scrutiny by the Parliamentary Joint Committee on Human Rights or the Senate Standing Committee on Regulations and Ordinances. It is a legislative instrument subject to the Legislation Act 2003. The explanatory statement, if any, is not provided in the source. The instrument appears to have been made in the ordinary course of tariff administration. The old order was made in 2007 and lasted until April 2009; the new order continues the concession. The instrument does not explain why the old order was revoked; possible reasons include a change in domestic production, a review of the concession, or a need to update the description. No such reasons are stated. The instrument is not an amendment to the Customs Act or Tariff Act; it is a subordinate instrument.

The source does not mention any litigation relating to this specific TCO or its revocation. Tariff concession orders are rarely the subject of litigation. When they are, it typically involves disputes over the meaning of the goods description or the application of the "goods not produced in Australia" test. There is no public record of a case between the Australian Customs Service and an importer over TCO 0918948. However, the instrument may have been cited in broader proceedings about tariff classification or duty evasion. It is more likely that the litigation history pertains to the enabling provisions of Part XVA of the Customs Act. Cases such as Re Application by Patrick Stevedores or Comptroller General of Customs v Kawasaki may be relevant but are not cited in the instrument. The instrument could be subject to review under the ADJR Act if a party argued that the delegate exceeded power or that the goods description was invalid. No such challenge appears in the source. The instrument is administrative and unlikely to attract litigation except in instances where a large commercial interest is at stake. The identical nature of the old and new lists suggests the revocation was not substantive. The instrument does not create any private rights that would be litigated. If an importer or domestic manufacturer wished to challenge the concession on the basis that goods are produced in Australia, that challenge would be directed to the original TCO, not this revocation instrument. The litigation history of TCOs in general includes cases such as Re Arnotts Biscuits (1971) or Kawasaki Heavy Industries v Comptroller General of Customs (1995). But those cases are not specific to this instrument. This instrument is unlikely to have been litigated because it is a straightforward continuation. If there were any litigation, it would be noted in the instrument’s context. The source is silent, so we conclude no known litigation.

Several features of this instrument can trap the unwary importer or compliance officer. First, the exhaustive list is a double edged sword. It is very long, but if a part is not precisely described by one of the listed terms, the concession does not apply. For example, a "reinforcement" is listed but a "reinforcing brace" might be argued to be excluded if it does not match "reinforcements" or "braces". The list uses plural forms in some cases and singular in others; the instrument does not specify whether the terms are to be interpreted broadly. Customs often takes a strict view, so even slight variations can cause a claim to be rejected. Second, the GVW threshold of "not less than 7.5 tonnes" is absolute. Parts for trucks with a GVW of 7.499 tonnes do not qualify. The importer must have reliable evidence of the vehicle's GVW, not just the tare weight or payload. Third, the retrospective date of effect from 22 April 2009, which is before the instrument was signed on 9 June 2009, creates a potential compliance gap. Importers who made entries between those dates using the old TCO number 0715785 may have made an incorrect claim. The old order was revoked from 22 April, so any entries after that date should have used the new number. If customs audits such entries, they might treat the use of the old number as a failure to satisfy the condition of the concession, leading to a duty demand. The instrument does not include a savings provision for entries made before the signing date. Fourth, the instrument is only a revocation order that substitutes a new TCO; it does not re state the full terms of the concession, such as the "goods not produced in Australia" condition. That condition is inherent in the TCO scheme, but the instrument itself does not mention it. An importer might mistakenly think that any qualifying part automatically gets the concession without checking domestic availability. However, if the Australian Border Force later determines that the goods are produced locally, it may challenge the original TCO eligibility, not just this revocation. Fifth, the instrument uses the term "parts and accessories", but those terms are not defined. Customs may rely on the harmonized system explanatory notes to distinguish parts from accessories, which can affect classification. Sixth, the list includes some items that could overlap (e.g., "bars" and "rods", or "plates" and "sheets"). An importer might claim one category but be denied if customs reclassifies the item. Seventh, the instrument does not specify the country of origin requirements; if a free trade agreement provides a zero duty rate, the TCO is redundant but still must be correctly claimed. Eighth, the instrument does not contain any transitional arrangements for goods in transit on the date of revocation. The revocation is immediate from 22 April, so any goods entered after that date must use the new order. Ninth, the instrument is signed by a delegate, not the CEO personally. If the delegation was not properly made, the instrument could be invalid. That is a rare gotcha but relevant for legal challenges. Tenth, the instrument is one page of text but the tables span six pages; the formatting is not clean. The description includes the phrase "Continued on next page" and there are some inconsistencies in the table layout. For example, in TABLE A on page 3, the last line includes "Op. 19.09.07 - TC 0715785" in the description column, which is not part of the goods description but rather a reference to the original operative date. That could confuse a reader who does not notice that it is not part of the goods list. Similarly, TABLE B includes at the end "Op. 22.04.09 - TC 0918948". The careful reader must ignore those notations. Finally, the instrument does not specify the duration of the new TCO. TCOs are generally open ended until revoked. The importer must monitor for future revocations or amendments.

Compliance with this instrument requires several practical steps. First, identify all imported parts that fall within tariff heading 8708.29.99 and are intended for use in on road trucks with a GVW of 7.5 tonnes or more. Compare the part description against the exhaustive list in TABLE B of the instrument. If the part matches one of the listed terms (e.g., "brake pedal" is not listed; "pedals" is listed, so a brake pedal would likely qualify if it is a pedal). If in doubt, obtain a written ruling from the Australian Border Force. Second, obtain and retain evidence of the truck's GVW. That could be the vehicle's compliance plate, manufacturer's specifications, or a registration certificate showing the gross vehicle mass. The evidence should be kept for at least five years after importation, as customs can audit retrospectively for four years. Third, ensure that all import declarations from 22 April 2009 onward refer to TCO number 0918948. If using customs software, update the TCO reference. If a broker is used, instruct them to use the correct number. Fourth, if any imports occurred between 22 April 2009 and the date the instrument was signed (9 June 2009) and the old TCO number was used, consider filing voluntary amendments with customs to correct the TCO number. Failure to do so could result in a demand for duty if audited. Fifth, for goods imported after 9 June 2009, the compliance is straightforward: use the new number. Sixth, keep a copy of this instrument or its registration on the Federal Register of Legislation for future reference. The instrument is publicly available. Seventh, monitor the Federal Register of Legislation for any subsequent revocation or amendment to TCO 0918948. If it is revoked, a replacement order or a lapse may require a new claim. Eighth, ensure that the imported goods are not subject to any anti dumping measures. Even if the TCO applies, anti dumping duties must be paid. Check the anti dumping notices for any relevant goods. Ninth, coordinate with suppliers overseas to ensure that invoices and packing lists describe the parts in terms that align with the TCO list. For example, if a supplier uses "bracket" but the TCO says "brackets", that is fine; but if the supplier uses "fastener" instead of "clamp" or "bracket", the customs officer may not accept it. Tenth, train staff involved in customs compliance on the specific list and the GVW threshold. Misclassification can be costly. Eleventh, for internal audit, maintain a register of all import entries claiming the TCO, including the part description, the truck model and GVW, and the TCO number. That will facilitate any future customs audits. Twelfth, if an importer also manufacturers trucks or parts in Australia, be aware that the existence of a TCO may indicate that the Australian Border Force considers the goods not produced locally. That could be a factor in any application for a new TCO or in response to a review. Finally, if any doubt arises, consult a customs lawyer or broker with experience in tariff concessions. The cost of non compliance (duty shortfall plus penalties) may far exceed the professional fees.