Tariff Concession Revocation Order 123/2007 - Tariff Concession Order 0704890/0711125

The central concept is the Tariff Concession Order system under Division 1C of Part VIII of the Customs Act 1901. A TCO allows specified goods to be imported at a concessional rate of customs duty (usually free or a reduced rate) if the Minister or delegate is satisfied that the goods are not produced in Australia in the normal course of trade. The TCO is subject to conditions and can be revoked if circumstances change or the order was made in error. This instrument is a revocation under section 269SD(2), which empowers the CEO (or delegate) to revoke a TCO and, if thought fit, to make a new one in substitution. The instrument itself acts as both a legislative instrument revoking the old order and a new grant of concession. The ‘item 50’ referenced in the tables is a line in Part III of Schedule 4 to the Customs Tariff Act 1995. That part lists goods eligible for concessional treatment; item 50 specifically covers goods that are not produced in Australia. The concession is not automatic; an importer must claim it and must ensure the goods meet the exact description. The descriptions in the instrument are exhaustive: for the parts list, the phrase ‘being ANY of the following’ followed by an alphabetical enumeration means only those specific articles qualify. Parts that are functionally equivalent but not named do not qualify. The separation of rubber poultry plucking fingers into a different heading (4016.99.00) introduces a classification boundary: a finger made from rubber must be classified under the rubber heading and claimed under TCO 0704890, not under the parts heading. The same physical object might also fall under the parts heading if made from other materials, but the list in TCO 0711125 no longer includes ‘fingers’ at all, so non-rubber fingers are not covered. The backdated effective date is another key concept: it operates retrospectively, meaning the legal consequence of the revocation and substitution is rolled back to 10 December 1997. This is unusual for a legislative instrument, and its validity may depend on the scope of the delegating power. The instrument does not reference any transitional provisions or savings for the period before the instrument was made.

The primary group affected comprises importers of poultry processing machinery parts, especially those who imported the listed components between 10 December 1997 and 12 July 2007. Such importers must re-examine entries made in that period to determine whether they relied on the revoked TCO 9710834 or on the new TCOs. If they used the old order after its revocation date, they may have underpaid duty. If they did not use any concession because they classified rubber fingers under the parts heading, they may now have a retrospective entitlement to a concession under the new rubber-specific TCO. Customs brokers, tariff consultants, and in-house compliance teams will need to audit past declarations and amend entries where necessary. The backdating imposes a disproportionate compliance burden on businesses that imported these goods years ago; they may no longer have full records or may face statute of limitation issues for duty recovery. Australian manufacturers of the listed parts are also affected. The TCO system is designed to benefit importers only when no Australian producer makes the goods. If a local manufacturer supplied rubber plucking fingers or any of the listed parts, the concessional entry may undercut their market. The reclassification of rubber fingers also affects tariff treatment under other regimes: rubber articles under heading 4016 may be subject to different anti-dumping measures, or different rates under free trade agreements, than parts of machinery under heading 8438. The change may therefore have upstream consequences for supply chain pricing. The Australian Border Force and the Department of Home Affairs are affected as administering agencies, as they must update their tariff advice databases, issue new TCO notices, and handle any voluntary disclosures or audits triggered by this instrument. Finally, any person who previously obtained a Tariff Advice ruling that relied on TCO 9710834 may need to seek a new ruling.

The instrument does not itself create duties or rights; it modifies the legal framework in which duties and rights operate. The right to claim concessional duty under a TCO is provided by section 269C of the Customs Act 1901, which entitles an importer to the concessional rate if they lodge an entry that cites the TCO number and the goods meet the description. By revoking the old TCO and substituting new ones, the instrument alters which TCOs can be cited. An importer’s right to use TCO 9710834 ceased on 10 December 1997, according to the instrument, even though that order remained on the public register until July 2007. This creates a potential trap: an importer who relied on the published status of the old order before the revocation was made may have innocently claimed a concession that was no longer valid. The instrument gives a new right: to claim TCO 0704890 for rubber fingers (heading 4016.99.00) and TCO 0711125 for the revised parts list (heading 8438.90.90), both effective from 10 December 1997. But the exercise of that right depends on correct tariff classification. The importer has the duty to self-assess; if they classify rubber fingers under the parts heading, they cannot claim either new TCO and may be liable for the full rate of duty. The instrument also imposes on the Australian Border Force a duty to administer the concession accurately. Decisions on TCO revocation are reviewable under section 269SA of the Customs Act, but that review is directed at the original decision to revoke, not at the terms of this legislative instrument itself. There is no right to object to the backdating. Importers have a duty to keep records for at least five years; for transactions between 1997 and 2007, those records may no longer be held, creating practical hardship. The explanatory material (not provided in the source) would typically state the policy reasons, but the instrument itself does not explain why the revocation and reclassification were necessary. This opacity increases uncertainty for compliance staff trying to determine the intended scope of the new orders.

The instrument is not itself a penalty provision, but it creates conditions that affect penalty exposure. If an importer claimed a concession under TCO 9710834 after its effective revocation date (10 December 1997), the goods were not eligible for the concessional rate, and the duty shortfall would be recoverable under section 213 of the Customs Act (for payment of shortpaid duty). In addition, if the shortfall resulted from a false or misleading statement, penalties may apply under section 243T (up to double the duty evaded) or under the Criminal Code offences for dishonesty. The retrospective operation of the revocation means that any shortfall arising from post-December 1997 entries is technically a past debt, even though the importer could not have known about the revocation at the time. The Australian Border Force may choose to apply its compliance discretion; the instrument’s backdating is aggressive, and it is possible that ABF would treat this as an administrative reclassification without penalty, but the source does not indicate any such assurance. Conversely, if an importer failed to use the new concession because they were unaware of it, they may have overpaid duty and could claim a refund under section 163 of the Customs Act, subject to the time limit of four years from payment. The instrument does not waive that limit for entries between 1997 and 2003. Enforcement could also arise from incorrect classification. For instance, an importer who claims the parts concession for rubber fingers (because the old order included them) would now be misclassifying the goods under heading 8438.90.90. If audited, they could face penalty for incorrect tariff classification as well as for using a revoked TCO. The potential for double penalty is higher because the instrument splits a previously unified list. The backdating could also expose customs brokers to professional indemnity claims if they continued advising clients to use the old TCO number after its revocation. There is no mention of any transitional amnesty or voluntary disclosure benefit in the instrument.

The instrument is made under the Customs Act 1901, specifically section 269SD(2), and operates within the Customs Tariff Act 1995. The concessional item number 50 in Schedule 4 to the Tariff Act is the gateway; the instrument designates the goods as eligible for that item. The Tariff Act itself sets the rate applicable to item 50, which is typically free but may be subject to other conditions (such as a certificate of non-production). The instrument does not alter those conditions. The instrument also interacts with the Customs (International Obligations) Regulation 2015 and Australia’s obligations under the WTO Agreement on Tariff Concessions; revocations and substitutions must not breach bound rates. The backdating may raise issues under the Legislative Instruments Act 2003 (now Legislation Act 2003), which generally requires legislative instruments to be registered and tabled; retrospective effect is permissible if the enabling act allows it. Section 269SD of the Customs Act does not expressly authorise backdating in the revocation power, so the validity of the 1997 date may be challenged. Additionally, goods classified under different headings interact with the Customs Tariff (Anti-Dumping) Act 1975 and the Customs (Anti-Dumping) Regulation 2013. Rubber plucking fingers under heading 4016.99.00 might be subject to anti-dumping measures that do not apply to parts of machinery under 8438.90.90; the reclassification could expose importers to anti-dumping duty or, conversely, remove protection for domestic producers. The instrument also interacts with free trade agreement preferential rates, which often require goods to be classified in a specific heading to claim the preference. If an importer qualifies for both a TCO and a FTA preference, they choose the lower rate, but the TCO may become irrelevant if the FTA rate is equally low. The instrument does not reference any trade agreement. There is also interaction with state and territory laws on occupational health and safety for poultry processing machinery, though those are not customs matters. For compliance professionals, the key interaction is with the system of Tariff Advice and TCO applications: any importer uncertain about the new orders can seek a binding ruling under section 269CA of the Customs Act, and that ruling would be based on these new TCOs.

This instrument itself is the amendment. It revokes TCO 9710834 (made 6 March 1998) and replaces it with TCO 0704890 and TCO 0711125. The source provides no earlier amendments to the revoked order or to these new orders. The instrument was signed on 12 July 2007 and is dated 12 July 2007; its pages are numbered 1 to 4. The signature block appears on each page. There is no indication that this instrument has itself been subsequently amended. The revoked order had been in place for roughly nine years before its revocation. The substantial change is the removal of ‘fingers’ from the parts list and the creation of a separate concession for rubber plucking fingers. The instrument does not state whether there were any interim amendments to the revoked order between 1998 and 2007. It also does not include any transitional provisions or saving clauses for goods already entered before the date of signing. As a legislative instrument, it was required to be registered on the Federal Register of Legislation; its registration date is not in the source but would be after 12 July 2007. The backdating to 10 December 1997 predates the original TCO’s making date of 6 March 1998 by a few months, which is anomalous: the revocation purports to take effect before the old order was even made. This may be a drafting error, or it may reflect an earlier application date that the original TCO carried. The source for the revoked order shows ‘Op. 10.12.97 - TC 9710834’, meaning the original order itself had an operative date of 10 December 1997 even though made on 6 March 1998. So the backdating aligns with the original operative date. The new orders also show ‘Op. 10.12.97’. The instrument’s effect is therefore to substitute the concession from the same operative date, not to change the operative date.

The source material does not refer to any court or tribunal proceedings concerning this specific instrument or the underlying TCOs. However, TCO revocation and classification disputes under the Customs Act frequently come before the Administrative Appeals Tribunal and the Federal Court of Australia. Cases such as Re Application for Review of a Tariff Concession Order (AAT) or Johnson & Johnson Pacific v Chief Executive Officer of Customs (Federal Court) set principles on the interpretation of TCO descriptions and the conditions for revocation. Because this instrument reclassifies a subset of goods (rubber fingers) into a different heading, it is possible that disputes may arise over whether a particular component is properly described as a ‘finger’ or falls within the residual parts list. For example, a poultry plucking finger made of a composite material might be argued to be classifiable under both headings, and the decision of the delegate to split the concession may be reviewed. The backdating could also be challenged as beyond power if it creates prejudice. The instrument does not mention any pending cases. The absence of litigation in the source does not mean none exists; it simply means no cases are recorded in this document. Compliance professionals should check the AAT and Federal Court databases for any review of TCO 0704890 or 0711125 since 2007. Given the age of the instrument, any direct challenge would now be out of time for judicial review (except for constitutional matters), but the interpretation of the instrument’s effect may still arise in duty recovery actions. The instrument itself is a legislative instrument, so it may be subject to scrutiny in proceedings where a penalty or duty is claimed, with the importer arguing that the revocation was invalidly backdated. No such case is referenced in the source.

Several traps lie in the details. Retrospective revocation: the backdating to 10 December 1997 means that any entry made under the old TCO after that date was technically non-compliant. If Customs audits, you may owe duty plus penalties for ten years of imports. Exhaustive list: the parts list is closed. Do not assume a component qualifies because it is similar or functional. The list includes, for example, ‘funnels’, ‘guide rails’, and ‘Y-pieces’, but not ‘guide channels’ or ‘T-pieces’. If your part is not literally named, it does not qualify. Removal of ‘fingers’: the revoked order listed ‘fingers’ as a separate item under the parts list. The new parts order (0711125) removes it entirely. Rubber plucking fingers now qualify only under the separate TCO 0704890, and only if classified under heading 4016.99.00. If you import non-rubber fingers (e.g., metal or plastic), they are no longer covered by any TCO based on this instrument. Classification interplay: a rubber finger may arguably be classifiable under heading 8438.90.90 as a part of machinery (by virtue of GIR 2(a) or 3(c) of the Harmonized System). But the concession under TCO 0711125 does not list fingers, so even if the goods are classified under 8438.90.90, you cannot claim that particular concession. You must instead use the rubber heading and TCO 0704890. That forces a classification change that may conflict with previous rulings or industry practice. Item 50 conditions: the concession under item 50 of Schedule 4 is available only if the goods are not produced in Australia. The instrument does not repeat that condition. If a local manufacturer produces any of the listed parts, the concession may be invalid. Importers cannot rely solely on the order; they must independently verify no local production. Backdated effective date on new orders: both new orders say ‘Op. 10.12.97’, but the instrument itself was made in 2007. If you claimed a TCO concession for these goods before 2007, you would not have known about these orders. Any such claim would have been under the old order, now revoked. You may need to voluntarily disclose and seek a refund of overpaid duty if you paid the full rate, or pay short-paid duty if you used the old TCO. The refund time limit of four years from payment may bar claims for pre-2003 entries. Signing authority: the instrument is signed by a delegate. If the delegation was not valid at the time, the instrument could be invalid. The instrument does not cite the specific instrument of delegation. Potential inconsistency with s 269SD(2): that subsection allows revocation ‘if the CEO is satisfied’ that grounds exist. The instrument does not state any satisfaction; it merely says ‘I … revoke’. A court might require reasons or evidence. No transitional savings: the instrument offers no protection for importers who acted in good faith before publication.

First, verify the tariff classification of your goods. For rubber poultry plucking fingers, confirm they meet the description under heading 4016.99.00 and that they are exactly ‘FINGERS, POULTRY PLUCKING, rubber’ as stated in TCO 0704890. For any other component, cross-reference it against the alphabetical list in TCO 0711125. Use the exact names; do not assume synonyms. If the part is not on the list, it is not covered. Second, determine the operative date. For all entries from 10 December 1997 onward, you must use the new TCOs where applicable, not the old TCO 9710834. Review past declarations. If you find you used the old TCO after 10 December 1997, consider making a voluntary disclosure to the Australian Border Force under their policy for correcting errors. You may owe duty, but voluntary disclosure can reduce penalties. If you paid duty at the full rate because you did not claim any TCO, and the goods would have qualified under the new orders, you may apply for a refund under section 163 of the Customs Act within the four-year limit. For entries older than four years, refund may not be possible. Third, update your internal tariff database or customs broker instructions to remove TCO 9710834 and add TCO 0704890 and 0711125 with the correct tariff headings. Ensure that any tariff advice or ruling you hold references these new numbers. Fourth, check the local production condition. If a competitor in Australia manufactures any of the listed parts, the concession may not apply, and you should not claim it. You can request a Tariff Advice ruling under section 269CA to confirm eligibility. Fifth, document your classification reasoning for each component. Keep copies of the instrument, the descriptions, and any supporting material such as drawings or supplier specifications that show the part matches the listed name. Sixth, be aware that the Australian Border Force may conduct post-clearance audits targeting this sector. Maintain records for at least five years; for the backdated period, you may need to retain older records even longer. Seventh, if you import both rubber fingers and other parts, ensure you do not mix claims: use TCO 0704890 for rubber fingers on separate entry lines classified under 4016.99.00, and TCO 0711125 for the listed parts under 8438.90.90. Finally, monitor the Federal Register of Legislation for any future revocation or amendment of these orders. Compliance is not a one-off task; the TCO system is dynamic.