Tariff Concession Revocation Order HS2007/685A - Tariff Concession Order 0614665

A tariff concession order (TCO) is a legislative instrument made under Division 2 of Part XVB of the Customs Act 1901 that allows certain goods to be imported at a concessional rate of customs duty, typically free or at a reduced rate, where the goods are not produced in Australia in a manner sufficient to meet domestic demand. The concessional item is specified in Part III of Schedule 4 to the Customs Tariff Act 1995. Item 50, the item number listed in both the revoked and new orders, is a general concessional item that provides for free duty on goods that meet the TCO description. The revocation power under subsection 269SD(2) permits the Chief Executive Officer or a delegate to revoke a TCO and make a replacement order in one step. This avoids leaving a gap during which the goods would fall back to the general tariff rate. The instrument thus illustrates the administrative concept of a rollover revocation where the commercial effect is nil but the legal instrument must be updated to reflect current tariff classifications and order numbers. The key concept of the goods description is the dual structure: a positive inclusive list (any toys falling under categories a to ai) followed by a negative list (excluded items i to xxiii). This means that a toy that falls within the general tariff heading 9503.00.99 and matches one of the positive categories but is not specifically excluded qualifies for the concession. The exclusions are almost entirely based on material (wood, plastic foam, fabric for balls) or function (musical topples, yachts, skipping ropes) or size (playhouses over 70 cm). Notably, toys made from non toxic plastic foam are excluded, but plastic slime is included, suggesting a careful line drawn between types of plastic materials. The concept of "last date of effect" in the old TCO (31 December 2006) and the new effective date (1 January 2007) shows that TCOs have a finite life and are meant to be replaced seamlessly. This instrument also highlights the concept of delegation under the Customs Act: the instrument is signed by "Robert Crawford, Delegate of the Chief Executive Officer". Delegates can make, revoke, and replace TCOs under s 269SD(2) without requiring ministerial approval. The price to be paid for the convenience of administrative rollovers is that importers must track these instrument numbers and classification changes even when the underlying tariff treatment does not change.

The primary affected group is commercial importers of toys that fall within the tariff subheading 9503.00.99 (formerly 9503.90.99) and match the inclusive/exclusive description in the instrument. These importers range from large toy retailers and distributors to smaller specialised importers of particular toy types such as plastic dress up shoes or liquid illusion feeding bottles. For these importers, the instrument imposes an administrative burden: they must update their customs entry documentation, procurement systems, and compliance checklists to reference the new TCO number 0614665 instead of the revoked TCO 9706434. Failure to do so could result in the customs authority rejecting the concessional claim or requiring a manual amendment. Customs brokers and freight forwarders are also directly affected because they are the agents who lodge import declarations and must know the correct TCO number and tariff classification for each shipment. The classification change from 9503.90.99 to 9503.00.99 may require brokers to retrain staff or update their software catalogues. Australian toy manufacturers who compete with imported toys are indirectly affected, because the concession continues to allow duty free entry for these goods. Domestic manufacturers of the excluded items (such as wooden toys, balls, skipping ropes, and plastic foam toys) may have a slight competitive advantage because those goods are not covered by the concession and attract the general rate of duty. However, the instrument does not change the scope of the concession, so any competitive effects are unchanged from the previous TCO. The Australian Border Force (ABF) officers who assess tariff classifications and concessional claims must be aware of the updated classification and order number. The ABF may need to issue updated tariff advices or industry notices to reflect the new instrument. Consumers are affected in the long run only if the concession reduces the landed cost of imported toys, which may translate to lower retail prices. The instrument does not raise or lower that concession; it merely continues it. Lawyers and compliance professionals advising importers must ensure clients understand the effective date gap: the instrument was signed on 20 June 2007 but has effect from 1 January 2007. Any entries made between 1 January and 20 June 2007 may have been processed under the old classification or old TCO; those entries now need to be checked for compliance with the updated classification and order number to avoid retrospective penalty exposure.

The Customs Act 1901 confers several duties and rights in the context of tariff concession orders. Importers have a right to claim the concessional rate of duty for goods that satisfy the TCO description. This right is not automatic; the importer must cite the correct TCO number and tariff classification on the import declaration. The instrument itself does not create new duties, but the underlying Act imposes a duty on importers to use the correct classification and TCO reference. Under s 269SD(2), the delegate has the discretionary power to revoke a TCO and make a replacement. That power is administrative and is not subject to public notice or consultation for this kind of rollover revocation, though more substantial changes to the goods description would likely trigger different procedures. The instrument grants the importer no right to retain the old TCO number; once revoked, it is no longer valid. Importers cannot rely on the old order for entries after 31 December 2006. The new TCO confers the same substantive right but under a different number. The instrument also imposes a duty on importers to accurately self assess the goods against the exclusion list. For example, if an importer brings in wooden household appliances (exclusion v), they cannot use the concession even if the goods otherwise fit the positive description. The ABF retains the right to verify and audit claims. The delegate who signed the instrument was exercising a duty to ensure the tariff schedule remains current and aligned with HS2007 amendments. Importers have a right to seek internal review or apply to the Administrative Appeals Tribunal if a claim under the TCO is refused, but that right arises under the Act, not this instrument. The instrument also illustrates the concept of retrospective operation: the new TCO takes effect from 1 January 2007, which is before the date of signature (20 June 2007). This retrospective effect is authorised by s 269SD(2) because the replacement order can be expressed to have effect from the date of revocation. Importers who lodged entries between January and June 2007 using the old classification or old TCO may need to correct those entries to align with this instrument. The duty to correct falls on the importer under the Act’s self assessment regime.

This instrument does not create any penalties. Penalties and enforcement arise under the Customs Act 1901 and the Customs Tariff Act 1995. If an importer claims the concessional rate under the wrong TCO or an expired TCO, the entry may be found to be underpaid. Under s 243T of the Customs Act, a penalty equal to double the amount of the underpaid duty may apply where a statement is false or misleading in a material particular. The use of the revoked TCO number 9706434 for an entry after 31 December 2006 could be considered a false statement if the importer knew about the revocation. Even if the importer did not know, the ABF may apply the penalty regime unless the importer can show reasonable care. The instrument’s 5 month gap between effective date and signature creates a real enforcement risk for importers who were unaware of the new order and classification. Customs officers have the power to issue penalty notices, demand payment of short paid duty, and conduct post clearance audits. The ABF also has the power to seize goods where duty has been underpaid and the importer cannot pay, though seizure is rare for classification errors. The instrument itself does not provide a defence or grace period. The delegate who signed the instrument bears no personal liability for enforcement decisions; that falls to the CEO and officers who administer the Act. Importers who correct their entries voluntarily may have penalty mitigation under the Act’s voluntary disclosure provisions. The exclusion list in the instrument also carries enforcement consequences: if an importer incorrectly claims the concession for an excluded toy (for example, a ball that the importer incorrectly described as a rubber toy not falling under the balls exclusion), the ABF may treat that as a misdescription and apply penalties. The instrument therefore places a high premium on accurate self assessment against both the positive and negative lists. Given that the instrument is 4 pages long and the description is dense, importers and brokers must ensure their staff have read the full instrument and not merely the tariff classification or the positive list.

This instrument operates within a statutory framework comprising the Customs Act 1901, the Customs Tariff Act 1995, and other legislative instruments made under those Acts. The revocation and replacement are made under s 269SD(2) of the Customs Act, which sits within Part XVB (Tariff Concessions) of that Act. The concessional item number 50 refers to Part III of Schedule 4 to the Customs Tariff Act 1995. That Part contains the general list of goods eligible for concessional duty when covered by a TCO. The instrument does not amend the Schedule 4 item itself; it merely provides that the goods described are goods to which that item applies. If the tariff classification 9503.00.99 is later amended or replaced by a future HS update, the TCO may need further revocation. The instrument does not interact with biosecurity, product safety, or consumer law, but imported toys must still comply with the Australian Consumer Law (safety standards for toys under the Competition and Consumer Act 2010) and the Biosecurity Act 2015. Nothing in this TCO exempts importers from those obligations. The instrument also interacts with the Tariff Concession System as a whole: multiple TCOs can cover similar goods, but each TCO is exclusive to the goods described. An importer cannot also claim under another TCO for the same goods unless that TCO permits. The revocation of the old TCO under this instrument means that any duplicate or overlapping TCOs for toys under 9503.90.99 would be primary source of concession only for entries before 2007. There is no interaction with state or territory legislation; customs duty is a Commonwealth matter. The instrument may interact with free trade agreements or other preferential tariff arrangements. For example, if the same toys are imported from a country with an FTA that provides a better rate, the importer can choose the FTA rate instead of the TCO rate. The TCO is a residual concession for goods from non FTA countries or where the FTA rate does not apply. The instrument does not affect the operation of anti dumping or countervailing duties, which are separate determinations under the Customs Act.

This instrument is a stand alone revocation and replacement order. It does not contain an amendment history within itself beyond referencing the revoked TCO 9706434 (made 23 October 1997). The instrument was signed on 20 June 2007 by Robert Crawford as delegate of the Chief Executive Officer. It is 4 pages long. The old TCO 9706434 had been in effect since 23 July 1997 (as noted in the description: "Op. 23.07.97 - TC 9706434"). The new TCO 0614665 takes effect from 1 January 2007. The instrument is identified as Revocation Instrument HS2007/685A. The "HS2007" prefix likely indicates this instrument was part of a bulk update to align TCOs with the 2007 edition of the Harmonized System. There was no public consultation required for this type of rollover revocation and replacement, as it does not change the substantive scope of the concession. The instrument was registered on the Federal Register of Legislative Instruments (now the Federal Register of Legislation) and is searchable. There is no indication in the instrument itself of any earlier amendments to the old TCO. The only amendment history relevant to this instrument is the revocation it performs. Since 2007, the new TCO 0614665 may itself have been revoked or amended; this instrument does not tell us that. Practitioners must check current register status before relying on this TCO. The instrument is a single event, not a series of amendments.

The instrument text does not reference any litigation, and no cases are mentioned. Tariff concession revocations have occasionally been challenged in the Administrative Appeals Tribunal or in the Federal Court, but this particular instrument has no known litigation history. Claims under TCOs can be reviewed by the AAT under the Customs Act, and judicial review may be available under the Administrative Decisions (Judicial Review) Act 1977 if there is a reviewable decision. Because the instrument performs a mechanical rollover without changing the scope, it is unlikely to have provoked challenge. However, if the classification change from 9503.90.99 to 9503.00.99 had caused some goods to fall into a different duty rate or to be excluded from the concession, litigation could have arisen. Given the description is identical, no such dispute appears. The instrument’s retrospective effect (from 1 January 2007) could have been a ground for challenge if an importer had relied on a different classification between January and June 2007, but no cases are recorded in the source. Practitioners should note that the validity of a TCO revocation and replacement under s 269SD(2) can be reviewed on administrative law grounds, for example if the delegate made an error of law or consideration of irrelevant matters. There is no evidence of such challenge. The instrument is presumed valid.

Several traps in this instrument warrant careful attention. First, the tariff classification changed from 9503.90.99 to 9503.00.99. While the goods description is identical, the classification change may cause confusion in customs entry systems that rely on the heading. Importers who continue to use 9503.90.99 after 1 January 2007 may have their goods incorrectly classed, potentially leading to a higher duty rate if the system cannot automatically cross reference the TCO. The old subheading 9503.90.99 was a residual basket subheading that was reallocated in HS2007; goods that fell under 9503.90.99 may not all map neatly to 9503.00.99. The instrument assumes that the toys described are classifiable to 9503.00.99, but if a particular toy type is actually classifiable elsewhere, the concession cannot be used. For example, if a toy watch functions as a real watch but is marketed as a toy, it might be classifiable under Chapter 91, not 9503. The importer must independently verify classification under the Customs Tariff Act. Second, the exclusions list is extensive and uses terms that may be ambiguous. For instance, "musical topples" is not a standard industry term; it likely refers to a type of stacking toy that makes musical sounds when toppled, but if an importer does not recognise the term, they might mistakenly think their musical stacking toy is not excluded. "Bouncing ride on inflatable toys" could cover inflatable hobby horses or outdoor jumpers. "Toys made from non toxic plastic foam" excludes a broad category: if a toy is made from foam plastic but the importer believes it falls within a positive category (like "sporting goods"), the exclusion overrides the positive inclusion. Third, the height limit for buildings (70 cm) applies to both the included buildings and the excluded playhouses and cubbyhouses over 70 cm. The importer must physically measure the packaged product? Particularly tricky for playhouses that can be assembled and may exceed 70 cm but are sold in a box that is under 70 cm. The exclusion says "playhouses or cubbyhouses over 70 cm in height" - likely the assembled height, but the instrument does not specify. Fourth, the instrument has retrospective effect. Entries made between 1 January and 20 June 2007 using the old TCO or old classification may now be non compliant. The importer may face penalties unless they voluntarily correct. Fifth, the instrument does not state that it revokes any other TCOs; there may be overlapping TCOs that cover the same or similar goods, and the importer must ensure they cite the most recent one. Finally, the instrument uses the plural "Toys" in the description but the individual categories are singular. This grammatical ambiguity could be argued if a product is a kit containing multiple toy types. The prudent approach is to treat the description as covering any toy that is one of the listed types, not requiring that the toy be classifiable as a toy set.

To comply with this instrument, importers of toys covered by the description should take the following steps:

1. Verify that the goods are classified under the Harmonized System subheading 9503.00.99 as at 1 January 2007. If the goods were previously classified under 9503.90.99, confirm that the correct classification under the HS2007 edition is indeed 9503.00.99. Use the Australian Customs Tariff 2007 or current tariff advice.

2. Read the full description in the instrument, including both the positive list (items a to ai) and the negative list (items i to xxiii). For each product line, confirm that it matches at least one positive category and is not excluded by the negative list. For example, a plastic slime toy that is also a bouncing ride on inflatable toy? The exclusions at (xxiii) would exclude it. Pay close attention to material based exclusions: wooden items, plastic foam items, balls (any material), skipping ropes, etc.

3. Use the correct Tariff Concession Order number 0614665 on the import declaration. Do not use the old number 9706434 for entries after 31 December 2006.

4. For any entries made between 1 January 2007 and the date of the instrument (20 June 2007) that used the old TCO number or old classification, consider lodging a voluntary disclosure with the ABF to correct the entry. Doing so may mitigate penalty risk. Check whether any duty underpayment has occurred due to the classification change.

5. Ensure that all staff involved in customs compliance are aware of the updated instrument. This includes procurement teams who may source goods from new suppliers, and who need to verify that the goods still fit the description. If a supplier changes the material (e.g., switches from plastic to foam), the concession may no longer apply.

6. Maintain records to support the classification and the claim under the TCO, as the ABF can audit years after entry. Keep supplier declarations, product specifications, and photographs of the toys.

7. Monitor the Federal Register of Legislation for any future revocation of TCO 0614665. This instrument may itself be superseded by later instruments. Do not assume the TCO remains current indefinitely.

8. If in doubt about a specific toy type, obtain a tariff advice ruling from the ABF or engage a customs lawyer. Self assessment is the default but carries risk where the description is as complex as this one.