Alstom Transport Australia Pty Ltd and Comptroller-General of Customs

This matter concerned an appeal by Alstom Transport Australia Pty Ltd against a decision of the Comptroller-General of Customs regarding a Tariff Concession Order (TCO). Alstom sought to import trains for the Sydney Metro system, which are designed to operate at Grade of Automation 4 (GOA4) level, meaning they are unattended and operate without an onboard driver. The Comptroller-General had refused the TCO application, and the Administrative Appeals Tribunal (AAT) was reviewing this decision.

The primary legal issues before the court were whether the core criteria for a TCO were met on the day the application was lodged, specifically whether substitutable goods were produced in Australia in the ordinary course of business. The court also had to consider the intended use or uses of the TCO goods as described in the application, and whether the GOA4 trains imported by Alstom were sufficiently distinct from any Australian-produced goods to warrant a TCO. A further question arose as to whether the description of the goods in the TCO application was apt to describe GOA3 trains, and if a competitor, Downer, which had produced GOA1 trains in Australia, could be considered to produce substitutable goods for GOA3 or GOA4 trains.

The court's reasoning focused on the interpretation of the criteria for a TCO, particularly the requirement for substitutable goods to be produced in Australia in the ordinary course of business. It noted that GOA2, GOA3, and GOA4 trains had not been built in Australia. While a competitor, Downer, had indicated a willingness to accept orders for GOA3 or GOA4 trains, this would involve contracting with overseas suppliers for the automated components. The court considered the precedent set by the Full Court in a previous Alstom decision, emphasizing that such decisions are only overturned in exceptional circumstances and require a clear demonstration of error. The court found that the Full Court's previous decision was not inconsistent with long-standing authority, as it did not place undue limitations on the characterisation of "use" and acknowledged that the specific use of TCO goods was a factual matter for the Tribunal to determine.

The decision of the Tribunal under review was set aside and remitted for re-determination. The court indicated that the Tribunal needed to further consider the evidence regarding the production of substitutable goods in Australia and the characterisation of the intended use of the TCO goods.