Alstom Transport Australia Pty Ltd and Comptroller-General of Customs

This matter concerned an application for a Tariff Concession Order (TCO) by Alstom Transport Australia Pty Ltd. The Comptroller-General of Customs opposed the application, arguing that the goods subject to the TCO were substitutable for goods produced in Australia in the ordinary course of business. The Administrative Appeals Tribunal was required to determine whether the TCO goods, described as driverless trains for the Sydney Metro North-West network, were substitutable for locally produced trains, specifically the HCMT trains.

The primary legal issue before the Tribunal was whether the trains identified by the Comptroller-General as substitutable were, in fact, substitutable for the trains subject to the TCO application, according to the test established in *Nufarm Australia Ltd v Comptroller-General of Customs*. This involved a five-limbed analysis: identifying the TCO goods, their uses, the substitutable goods, their uses, and whether any of these uses corresponded. The Tribunal also considered a related issue regarding the potential period for which a TCO might be granted, given the later production of the HCMT trains.

The Tribunal applied the five-limbed test from *Nufarm*, requiring it to make findings of fact on each limb. The Applicant contended that no Australian-produced substitutable product existed at the relevant time that met the specific requirements of the Sydney Metro North-West network. The TCO goods were described as automated, driverless trains operating on a closed network. The Comptroller-General, however, argued that the Applicant conflated the description of the TCO goods with their uses, particularly their function as high-frequency, metropolitan trains, and that the locally produced HCMT trains were substitutable.