Vega Industries Australia Pty Ltd and Comptroller-General of Customs - [2023] AATA 4091

Vega Industries Australia Pty Ltd and Comptroller-General of Customs [2023] AATA 4091 (8 December 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2022/1675
Re:VEGA INDUSTRIES AUSTRALIA PTY LTD
APPLICANT

AndCOMPTROLLER GENERAL OF CUSTOMS
RESPONDENT

DECISION
Tribunal:Senior Member D K Grigg
Date:8 December 2023
Place:Melbourne

The Tribunal affirms the decision under review.
......................................[SGD]..................................
Senior Member D K Grigg
Catchwords
CUSTOMS – Customs Act 1901 – tariff concession orders – applicant importer of high chrome grinding balls – goods claimed to be substitutable produced in Australia in ordinary course of business – whether substitutable goods – relevance of superiority, quality or price – whether corresponding use “reasonable” or “commercial” use – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Customs Act 1901 (Cth)
Customs Tariff Act 1995 (Cth)
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[2009] HCA 41; 239 CLR 27
Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43; 275 FCR 652
Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2023] AATA 3498
Amcor Ltd v Comptroller-General of Customs [1991] FCA 806; 105 ALR 216
Automotive Components Limited (Receivers and Managers appointed) (in liquidation) v Secretary, Department of Industry and Science [2016] FCAFC 6; 237 FCR 468
Bull v Attorney General (NSW) [1913] HCA 60; 17 CLR 370
Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd [2012] FCAFC 78; 203 FCR 129
Collector of Customs v Agfa-Gevaert Ltd (1996) HCA 36; 186 CLR 389
Commissioner of Taxation v Auctus Resources Pty Ltd [2021] FCAFC 39; 284 FCR 294
Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109; 293 FCR 381
Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 652; 103 ALR 661; 32 FCR 219
Comptroller-General of Customs v Vestas - Australian Wind Technology Pty Ltd [2015] FCAFC 185; 236 FCR 499
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Federal Court in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757, 123 ALD 21
Luttick Australia Pty Ltd v Export Development Grants Board [1985] FCA 173; (1985) 5 FCR 589
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Downer EDI Rail Pty Ltd v Chief Executive Officer of Customs (2010) 118 ALD 454
Re Vulcan Australia Pty Ltd and Comptroller-General of Customs [1994] AATA 150; 34 ALD 773
Riverwood Cartons Pty Ltd v Chief Executive Officer of Customs (1997) 77 FCR 493
Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374
Rose v Secretary, Department of Social Security [1990] FCA 59; 21 FCR 241
Secretary, Department of Employment and Workplace Relations v Bhagwandas [2023] FCA 398; 179 ALD 460
Stevens v Kabushiki Kaisha Sony Computer Entertainment and Others (2005) 224 CLR 193
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Secondary Materials
Explanatory Memorandum, Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992 (Cth)
Second Reading Speech to the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992
Table of Contents
REASONS FOR DECISION
INTRODUCTION
LEGISLATIVE BACKGROUND
Customs Tariff Act
Customs Act
“Core Criteria”
Ordinary Course Of Business
Substitutable goods
Goods Produced In Australia
TCO Orders
Revocation
Request for Review

APPLICATION PROCESS/COMPTROLLER’S REVIEW
ISSUES FOR THE TRIBUNAL
CONTENTIONS - SUMMARY
Vega’s Contentions
Comptroller’s contentions
Are the forged balls manufactured by Molycop produced in Australia in the “ordinary course of business
EVIDENCE
Mr Steinier
Qualifications
The TCO Goods
Grinding balls
Current uses of forged balls and HiCr balls in Australia

Mr Dunn
Qualifications
What are the uses to which the Australian produced Molycop forged balls are put, and can be put?
Factors affecting the choice between using HiCr balls or Australian produced forged balls in ball mills
Current uses of forged balls and HiCr balls in Australia
Are there uses to which the Australian produced forged balls are put or can be put to which HiCr balls are put, or capable of being put?

CONSIDERATION
Issues not in dispute
Interpretation of the TCO Regime
Use of Expert Evidence

Test for Determining Whether Core Criteria Met
(i) What are the TCO Goods
(ii) To what use or to what uses are they put, or can they be put?
What Are The Uses of The TCO Goods
To What Use Could the TCO Goods be Put
The Evidence

(iii) What are the goods claimed to be substitutable?
(iv) To what use or to what uses are the Molycop Balls put or are they capable of being put?
(v) Are the uses in (ii) and (iv) or any of them corresponding uses? Are they substitutable?
DECISION
REASONS FOR DECISION
Senior Member D K Grigg
8 December 2023
INTRODUCTION

Vega Industries Australia Pty Ltd (Vega) is the Australian subsidiary of Vega Industries Ltd, a Dubai-based company that distributes high chrome or high chromium (HiCr) grinding balls and other products into different markets.
This matter concerns Vega’s application for a tariff concession order (TCO) under Part XVA of the Customs Act 1901 (Cth) (Act) with respect to some HiCr grinding balls which are used in the mining industry to grind or crush ore to extract metals and minerals.
The granting of a TCO would enable Vega to import the grinding balls in question at a reduced importation cost.[1] There are no manufacturers in Australia of the type of HiCr grinding balls imported by Vega.
[1] Customs Tariff Act 1995 (Cth).
The Comptroller General of Customs (Respondent) has refused to make a TCO.
LEGISLATIVE BACKGROUND
Customs Tariff Act
Tariffs, or duties, of customs are imposed on imported goods pursuant to the Customs Tariff Act 1995 (Cth) (Tariff Act).[2]
[2] Section 15, Customs Tariff Act 1995.
The Tariff Act sets out the rate of applicable duties to goods depending on their classification and origin.
The Tariff Act contains numerous schedules - Schedule 2 of the Tariff Act sets out the classification rules, Schedule 3 classifies goods into certain categories and provides the rates of duty, and Schedule 4 contains items that fall within concessional rates of duty.
For present purposes, Item 50 of Schedule 4 provides that goods that a TCO, made under Part XVA of the Act, declares are goods to which that item applies, attract no duty.
The tariff classification which is relevant to the HiCr grinding balls under consideration here is subheading 7325.91.00 of Schedule 3 to the Customs Tariff Act 1995:

7325

OTHER CAST ARTICLES OF IRON OR STEEL:

7325.10.00

-Of non-malleable cast iron

5%

7325.9

-Other:

7325.91.00

--Grinding balls and similar articles for mills

5%
DCS:4%
DCT:5%

Customs Act

Part XVA of the Act provides the overall legal framework for customs procedures, duties, and controls. The Act also sets out the TCO regime.
The purpose of the TCO system is to protect Australian industry from foreign competition by only allowing goods to be imported into Australia tariff free (or at a reduced tariff) in certain prescribed circumstances.[3] The customs duty regime was described by Hill and Heerey JJ in Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 652; 103 ALR 661; 32 FCR 219 at 240-241 as follows:
[49] The regime of Customs duties, including variations effected by [tariff concession orders], is at any given time the scoreboard of the enduring contest waged between the forces of free trade and protection. As well as the direct commercial interests ... there are social, political and economic considerations affecting the whole Australian community.
[3] See Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109; 293 FCR 381, at [8]; Comptroller-General of Customs v Vestas - Australian Wind Technology Pty Ltd [2015] FCAFC 185; 236 FCR 499 at [9]–[40].
Applications for TCO can be made under section 269F of the Act which sets out what the application must contain:
(a) a full description of the goods to which the application relates; and
(b) a statement of the tariff classification that, in the opinion of the applicant, applies to the goods; and
(c) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant's own behalf--the identity of the importer for whom the applicant is acting; and
(d) particulars of all the inquiries made by the applicant (including inquiries made of prescribed organisations) to assist in establishing that there were reasonable grounds for believing that, on the day on which the application was lodged, there were no producers in Australia of substitutable goods.
It is the applicant’s responsibility to establish “there are reasonable grounds for asserting that the application meets the core criteria”: section 269FA, Act
Pursuant to section 269P of the Act if a valid application has been made under section 269H of the Act, in respect of goods, the Comptroller must decide whether the TCO meets the “core criteria”.
“Core Criteria”
Section 269C of the Act sets out when a TCO is taken to have met the core criteria. It provides:
…a TCO application[4] is taken to meet the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.
[4] Which includes an application under section 269F.
Ordinary Course Of Business
“Ordinary course of business” has the following meaning given by section 269E of the Act.[5] It provides relevantly:
[5] Customs Act 1901 (Cth) S 269B.
Interpretation--the ordinary course of business
(1) For the purposes of this Part, other than section 269Q, goods (other than made-to-order capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if:
(a) they have been produced in Australia in the 2 years before the application was lodged; or
(b) they have been produced, and are held in stock, in Australia; or
(c) they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged;
and a producer in Australia is prepared to accept an order to supply them.
(2) For the purposes of this Part, substitutable goods, in respect of goods the subject of a TCO application, are taken to have been produced in Australia in the ordinary course of business if:
(a) a producer in Australia could produce substitutable goods, in respect of goods the subject of the TCO application, with existing facilities; and
(b) the substitutable goods the producer could produce would be made-to-order capitalequipment; and
(c) in the 5 years before the application was lodged, the producer has made goods requiring the same labour skills, technology and design expertise as the substitutable goods the producer could produce; and
(d) the producer is prepared to accept an order to supply substitutable goods in respect of goods the subject of the TCO application.
Substitutable goods
“Substitutable goods” in respect of goods the subject of a TCO application or of a TCO, is defined in section 269B(1) as follows:
"substitutable goods", in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put.
(emphasis added)
Section 269B(3) of the Act provides that in determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether the Australian produced goods compete with the TCO goods in any market.
Goods Produced In Australia
"Goods produced in Australia",has the meaning given by section 269D of the Act.[6] Goods, excluding unmanufactured raw goods which are not relevant here, are taken to have been produced in Australia if wholly or partly manufactured in Australia.
TCO Orders
If an application meets the core criteria, the Comptroller is then required to “make a written order declaring that the goods the subject of the TCO application are goods to which a prescribed item specified in the order applies”: section 269P(3), Act.
The TCO must include (section 269P(4), Act):
(a) a description of the goods the subject of the order including a reference to the Customs tariff classification that, in the opinion of the Comptroller-General of Customs, applies to the goods; and
(b) a statement of the day on which the TCO is to be taken to have come into force; and
(c) if subsection 269SA(1) applies in relation to the TCO--a statement of the day on which it ceases to be in force.
A TCO cannot be made in respect of goods described in terms of their intended end use. See section 269SJ(1) and (1A) which provides:
TCOs not to apply to goods described by reference to their end use or certain goods
(1) The Comptroller-General of Customs must not make a TCO in respect of goods:
(aa) described in terms other than generic terms; or
(a) described in terms of their intended end use; or
(b) declared by the regulations to be goods to which a TCO
should not extend.
(1A) Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods.
The applicant must be notified of the decision and the decision is published by notice in the Gazette: section 269R, Act.
Revocation
Pursuant to section 268SB of the Act, entities can request a TCO to be revoked if they claim to be an Australian producer of substitutable goods. The Comptroller must then make a decision in relation to the revocation request and that decision must also be published in the Gazette: sections 269SC, 269SE, Act.
Request for Review
Any affected person may request an internal review of the original gazetted decision: section 269SH, Act. Following the internal review decision an affected person may the apply to the Administrative Appeals Tribunal for a further review: section 269SHA, Act.
Pursuant to section 273GA(1)(n) of the Act, a decision made by the Comptroller under section 269SH on a reconsideration of a decision under section 269P(1) of the Act, can be reviewed by the Tribunal.
APPLICATION PROCESS/COMPTROLLER’S REVIEW
The imported item under scrutiny here is referred to as a HiCr grinding ball. They are “cast” grinding balls as opposed to “forged” grinding balls.
On 8 July 2021 Vega lodged a TCO application describing the goods as follows (TCO Application):[7]
[7] Exhibit 3, T Documents, T3.1, page 76.
This description was not part of the proposed TCO because pursuant to section 269SJ(1)(a) a TCO cannot be made in respect of goods described in terms of their intended end use.
The parties subsequently agreed that the appropriate description of the goods was (TCO Goods):[8]
GRINDING BALLS, Cast Steel, having a chromium content of NOT less than 10%.
[8] Ibid T6, T7, 115-118.
[9] Ibid T7.1, 119.
[10] Ibid T7.1, 120.
Following an assessment, the Comptroller accepted the TCO application on 23 July 2021.[9] The Gazette Notice provided the following description and stated use for the TCO Goods (TCO Order):[10]
The tariff classification (7325.91.00 of Schedule 3 to the Customs Tariff Act 1995) attracts a general rate of customs duty of 5 percent and a developing country rate (DCS) of 4 percent for imported goods falling within the tariff classification.
Following the Gazettal of the TCO Order, an objection was lodged by Commonwealth Steel Company Pty Ltd (trading as “Molycop”) (Molycop) on 17 August 2021.[11] Comsteel is the Australian company within the international Molycop Group of companies. Comsteel has been manufacturing grinding media in Australia since 1929. The Molycop Group is the largest grinding media company in the world with 12 grinding media manufacturing facilities.
[11] Ibid T8, T8.1, 121-129.
Molycop produces and sells forged grinding balls not HiCr balls.
Molycop manufactures forged grinding balls in Australia. Molycop stated to the Comptroller that its forged grinding balls (Molycop Balls) are substitutable goods for the TCO Goods. It stated:[12]
substitutable goods are locally manufactured ferrous grinding balls, whether or not containing alloys, forged, with diameters in the range 22mm to 170mm (inclusive).
[12] Ibid T8.1, 124.
Following its review, the Comptroller determined that the TCO Goods did not meet the core criteria under section 269C of the Act and refused to make Tariff Concession Order 21323086.[13] (Original Decision made pursuant to section 269P).
[13] Ibid T1, 30 ; T10.1, 162.
Vega requested an internal review of the Original Decision on 1 December 2021 pursuant to Section 269SH(1) of the Act.[14] Vega submitted that the TCO Goods and the Molycop Balls (the forged grinding balls) do not have a corresponding use and are not substitutable. Vega provided the following summary of purported differences between the ball types):[15]
[14] Ibid T11, 169; Original decisions can be reviewed internally pursuant to section 269SH of the Act.
[15] Ibid T11.1, 170-173.
On 28 January 2022 the Comptroller affirmed the Original Decision under section 269P of the Act to refuse to make Tariff Concession Order 21323086 (“Internal Review Decision”).[16]
[16] Ibid T13.1, 180-181.
On 7 March 2022 Vega applied to this Tribunal for a review of the Internal Review Decision.[17]
[17] Ibid T1, pages 1-30, Application for Review dated 7 March 2022.
The Tribunal has jurisdiction to review the Decision pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and section 273GA(1)(n) of the Act.
ISSUES FOR THE TRIBUNAL
The issue for the Tribunal is whether on the date the TCO Application was lodged (i.e., on 8 July 2021), the TCO Application met the “core criteria” under section 269C of the Act such that a TCO under Part XVA of the Act should be granted.
This will involve a consideration of whether the Molycop Balls are:
(a)produced:
(i)in Australia;
(ii)in the “ordinary course of business”; and
(b)“substitutable goods” for the TCO Goods.
CONTENTIONS - SUMMARY
Vega’s Contentions
Vega contends:[18]
(a)the TCO Goods are manufactured through what is known as a casting process in which liquid metal is poured into a mould;[19] and
(b)the forged grinding balls, which are manufactured in Australia, are not a substitutable product within the meaning of section 269C of the Act; and
(c)there are no manufacturers in Australia of the TCO Goods.
[18] Applicant’s Statement of Facts Issues and Contentions (ASFIC), [1.5]-[1.10].
[19] Exhibit 3, T documents,T4. l page 109.
Vega contends the Tribunal must first consider the actual and reasonable uses to which the TCO Goods can be put. After that task the Tribunal can then assess whether the Molycop Balls can be put to those actual and reasonable uses.[20]
[20] ASFIC, 3.9 to 3.14, relying on CEO of Customs v Toyota Material Handling Australia Pty Ltd & Anor (2012) 203 FCR 129, 130-131; Comptroller-General of Customs v Alstom Transport Australia Pty Ltd¹⁷("Alstom No.2") [2022] FCAFC 109; Alstom Transport Australia Pty Ltd v Comptroller-General of Customs (2020) 275 FCR 652 ("Alstom No. I").
Vega cautioned the Tribunal “not to identify a genus of goods that is either wider or narrower than the actual goods described in the TCO” as this could lead to a denial of a concession for a good which has no “real equivalence to goods produced in Australia”.[21]
[21] ASFIC 3.13; Applicants Written Closing Submissions, [12].

The Applicant contended that the Tribunal should set aside the decision under review, and in substitution thereof the Comptroller should be directed to make a written order under section 269(3) of the Act declaring that the goods the subject of the TCO Application are goods to which a prescribed item specified in the order applies.
Comptroller’s contentions
The Comptroller contends that the Molycop Balls were manufactured in Australia in the ordinary course of business on the date the TCO Application was lodged and were substitutable for the TCO Goods.[22]
[22] Respondent’s Statement of Facts Issues and Contentions(RSFIC), [5].
The Comptroller submitted inter alia that:[23]
(a)the fact that a good may have certain additional features or performance advantages is irrelevant if the two goods can be put to a corresponding use; and
(b)a corresponding use includes use as the grinding media in ball mills operating at mines and mineral processing plants, grinding the same kinds of mineral ores prior to further processing.
[23] Respondent’s Written Closing submissions, [6] & [55].
The Comptroller submitted that following propositions have developed from the caselaw:[24]
[24] Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773; [1994] AATA 150 (Vulcan) at [45]-[48]. Re Downer EDI Rail Pty Ltd v Chief Executive Officer of Customs (2010) 118 ALD 454 (Downer) at [28], [34]-[35], [40]; Federal Court in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757, 123 ALD 21 (Nufarm) at [50]. and the Full Federal Court in Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd (2012) 203 FCR 129 (Toyota) at [4], [5], [10], [14]- [[19]; Comptroller-General of Customs v Vestas-Australian Wind Technology Pty Ltd (2015) 236 FCR 499 (Vestas) at [60] Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43, 275 FCR 652 (Alstom No1) at [54], [56]; Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109; 176 ALD 336 Alstom No.2, at [21] – [26], [59] & [62].
19.1. The language of the definition of “substitutable goods” in s 269B(1) of the Act is broad. The concepts of “design use”, corresponding use, and capacity to use, all point to a liberal approach to the interpretative exercise.
19.2. This is even more so after 1996 when, as a consequence of the abolition of the alternative criteria for granting a TCO in s 269C (viz., that “substitutable goods were produced in Australia in the ordinary course of business but the granting of the TCO was not likely to have a significant adverse effect on the market for the substitutable goods”), and insertion of s 269B(3), it was no longer necessary or lawful to examine whether the TCO goods and the locally produced goods compete in any market.
19.3. The reference to “use” is to be given an ordinary meaning that focuses on the end result or practical effect the goods achieve, and not the means of achieving that end result or use is achieved. The means by which the use is achieved is not usually regarded as relevant. However, the means by which goods operate may be relevant if and to the extent to which, the means affects the use of the goods;
19.4. The task is not to identify a broad genus of use but the use(s) of the actual goods described in the TCO application and the actual goods which are produced in Australia;
19.5. The comparison required is not only between actual uses, but also between potential uses;
19.6. The potential uses to which the definition adverts are only reasonable ones. So although a spoon could be used to dig a trench, that is not a reasonable use of a spoon, and a spoon is not substitutable goods for a mechanical excavator. However, the reasonable uses do not need to be sensible commercial uses;
19.7. The identification of use is a separate and distinct exercise to the identification of the TCO goods and the goods claimed to be substitutable;
19.8. The ordinary meaning of “corresponds” indicates that the respective uses of the goods need not be identical or be exactly the same use;
19.9. There will be a corresponding use, and the TCO must be refused, if one or more of the actual or potential uses overlap. Once any corresponding use has been found, the goods are substitutable : it does not matter if that corresponding use is a minor or exceptional use rather than a usual use;
19.10. The legislative scheme is focused on protection of local industry. Its purpose is to remove the cost of customs duty only where the imposition of the duty serves no protective function for Australian industry.
ARE THE FORGED BALLS MANUFACTURED BY MOLYCOP PRODUCED IN AUSTRALIA IN THE “ORDINARY COURSE OF BUSINESS
It is not in dispute that the forged balls manufactured by Molycop are produced in Australia in the “ordinary course of business.[25]
[25] Applicants Written Closing Submissions, [6].
A range of forged balls in sizes from 25mm – 140mm was produced in Australia in the 2 years prior to 8 July 2021.[26]
[26] Exhibit 1, Tribunal Book, Annexure C, Rick Dunn Witness Statement, 77-79 [8]-[10].
The issue that remains for consideration is whether the Molycop Balls are “substitutable goods” for the TCO Goods.
EVIDENCE
Vega relied on the evidence of Mr Philippe Steinier, General Manager of Business for Vega. Mr Steinier provided two witness statements dated 28 October 2022 and 14 March 2023.
The Comptroller relied on the evidence of Mr Rick Dunn, Technical Services Manager – Grinding Media at Commonwealth Steel Company Pty Ltd (which trades in Australia as Molycop). Mr Dunn provided two witness statements dated 19 December 2022 and 23 March 2023.
Both witnesses gave oral evidence at the hearing and were cross-examined.
Mr Steinier[27]
[27] Ibid, Annexure A, Phillipe Steinier - Outline of Evidence.
Qualifications
Mr Steinier has Masters degrees in Geology, Mining and Metallurgy and is “one of the pioneers of research into the uses of cast balls with a high content of chromium in the mining and recovery of metals and minerals”. He is the author of many publications in this area and has also invented patented equipment specifically designed for the analysis of pulp chemistry.
Mr Steinier is also a metallurgy consultant. Mr Steinier has 30 years of experience in the Australian mining industry.
There is no dispute that Mr Steinier is qualified to give an opinion on the matters canvassed in his statements and oral evidence. This evidence traversed, among other things:
(a)how grinding balls are manufactured;
(b)the molecular structure of grinding balls;
(c)the physical properties of grinding balls; and
(d)the performance characteristics (both physical and chemical) of grinding balls.
The TCO Goods
Mr Steinier said the “goal of the mining process is to liberate the valuables from the gangue [i.e., worthless material], and then separate them from the gangue and recover them in a concentrate” as economically as possible. Mr Steinier said, “extraction efficiency is critical”.
There are different extraction methods available, and each mine has its own unique combination of variables which need to be considered.
In determining the most efficient way to extract the valuables from mines, Mr Steinier said some of the factors determining the choice of coarse grinding equipment include:
(e)the type of ore - i.e., is the gangue hard or brittle;
(f)the size of the mine; and
(g)running costs.
Mr Steinier explained in his statement that the design and operation of mills is a complex science. Mr Steinier provided a summary of the different types of mills including coarse mills, autogenous mills (AG), semi-autogenous mills (SAG) and high-pressure grinding roll (HPGR) mills. AG and HPGR mills do not use any type of grinding ball.[28]
[28] Exhibit 1, Tribunal Book, Annexure A, Phillipe Steinier - Outline of Evidence, 6-8.
There can be more than one mill at any mine site.
First stage of grinding is referred to as coarse grinding. The next stage is referred to as fine or secondary grinding and takes place in a ball mill. A ball mill is a long horizontal tube or cylinder of much less diameter than a SAG mill.[29] The mill is charged with 30 - 40%, by volume, of steel balls. Mr Steinier said that particle reduction in a ball mill is “fundamentally different to the process in an AG mill or a SAG mill in that the comminution of the rocks in a ball mill is achieved by friction between the ore particles and the balls as they roll over one another, rather than by impact which shatters rock particles”.
[29] See pictures of ball mills in Annexure ‘E’ to Mr Steinier’s Outline of Evidence.
Mr Steinier sets out in his statement the details of how the ball mill operates.
Two chemical processes are also sometimes used to recover valuables – flotation and leaching. Both techniques are complex. However, they are not the only techniques available.[30]
[30] Applicants Written Closing Submissions, [21(g)(iii)].
Grinding balls
The two types of grinding balls under consideration here are either forged or cast. Forged balls were the predominant type of grinding ball used by the mining industry initially. Cast balls with a high chromium content, known as “HiCr” balls, were introduced in or around 1990-2000. Mr Steinier said HiCr balls are now the industry standard for ball mills in Australia (excluding SAG mills).
Forged balls have a carbon content of less than 2%. Balls with a higher carbon content and a high chromium content are unable to be forged as they are less impact resistance and prone to cracking. As a result, higher chromium content balls must be cast.
In Mr Steinier’s opinion forged balls and HiCr cast balls are “very different” in terms of:[31]
(a)their manufacturing process; and
(b)compositions and structures.
[31] Exhibit 1, Tribunal Book, Annexure A, Phillipe Steinier Outline of Evidence , [51].
The question, discussed later, is whether these differences, of themselves, are relevant to the fundamental question of what is a substitutable good. Whether one good is substitutable for another is concerned with how goods are used, not how they are made or composed. This is discussed further at paragraphs 165 - 170.
Manufacturing Process
Mr Steinier explained the different manufacturing processes of forged and cast balls as follows:[32]
(a)both balls are made from steel;
(b)forged balls are made from basic steel bars which are heated and shaped into balls. They are then quenched (rapidly cooled) and transformed into monophasic martensite;
(c)HiCr balls are more difficult to produce than forged balls. They have chromium added to the steel and produced in a furnace. During casting the liquid metal cools in the moulds and solidifies into two separate phases: (a) chromium carbide (which is formed from the carbon and some of the chromium) and which constitutes approximately 30% of the ball; and (b) a matrix of pearlite containing some chromium content. After cooling and being separated, the balls are sent to the heat treatment furnaces for heat treatment cycles which will vary for different casting specifications and customer requirements;
(d)HiCr balls are multiphasic;
(e)“The ability to control and vary the combinations of raw ingredients and the variety and complexity of the heat treatment cycles enables a manufacturer to produce a large range of product specifications with unique characteristics. However, the process is extremely difficult to master and nearly all of the world’s production of HiCr cast balls comes from two manufacturers”.
Features and Properties
[32] Ibid, [61]-[73].
Mr Steinier said HiCr balls are hard and resistant to corrosion but lack malleability (making them more susceptible to spalling and breakage). The respective properties of forged balls and HiCr balls were summarised by Mr Steinier as follows:[33]
[33] Ibid, [74]-[76].
SAG Mills
SAG mills are mills which combines features of both AG mills and ball mills, i.e., a combination of ore and grinding media, such as balls, to performing the grinding). In a SAG mill Mr Steinier explains the main grinding option is the impact of rock cascading on rock. The SAG Mill is also charged with large, forged steel balls which are used to deal with critical size accumulation.
As a result of their features, Mr Steinier said HiCr balls are “unsuitable for use in SAG mills because they crack and break apart under the intense impact level”. In contrast to HiCr balls, forged balls are very effective in SAG mills.
Ball Mills
Mr Steinier said when forged balls are used in ball mills they have a “significant negative impact on the process of recovering valuables from the ore particles” because:
they: (a) are responsible for the deterioration of the surface of that valuables (they also impact the gangue adversely, but for different reasons); and (b) they have an adverse impact on the subsequent recovery process because they alter the chemistry of the pulp in the ball mill and the flotation cell. They also have a similar impact on the pulp in the leaching vessel.
By contrast, Mr Steinier said the benefit of HiCr balls over forged balls in ball mills is that they abrade in a ball mill more slowly than forged balls do because of the:
(a)presence of the chromium carbide; and
(b)superior corrosion resistance.
Different gangue at each mine have different corrosive qualities and therefore play a part of the type of the ball that should be used. For example, quartz is non-reactive and non-corrosive whereas sulphide gangue is highly corrosive. Mr Steinier said another factor to consider when choosing ball type is water quality (highly saline water for example is more corrosive).
Mr Steinier said when a customer asks for HiCr balls, he arranges for test balls to be used initially to determine the optimum percentage of chromium that should be used.
Other factors for mines to consider when choosing an appropriate grinding medium includes the impact on pulp chemistry which has an impact on performance.[34] Mr Steinier said technical people in the industry have established that the change from forged to HiCr balls will increase efficiency.
Current uses of forged balls and HiCr balls in Australia[35]
[34] Exhibit 1, Tribunal Book, Annexure A, Phillipe Steinier Outline of Evidence, [93]-[99].
[35] Ibid Annexure C, Philippe Steinier – Supplementary Evidence, [7].
Mr Steinier provided tables setting out details of the mines that are currently operating in Australia. The information provided includes:
(a)the location of each plant and the company that owns it;
(b)the valuables that are mined at each plant;
(c)the type and number of mills that are used at each site;
Mr Steinier identified 26 ball mills use steel forged balls and 131 ball mills use high chrome balls.
Mr Dunn[36]
[36] Exhibit 1, Tribunal Book, Annexure C, Rick Dunn - Witness Statement.
Qualifications
Mr Dunn is the Technical Services Manager – Grinding Media, of Molycop. Mr Dunn has a Bachelor of Applied Science (Metallurgy) from what was then known as South Australia Institute of Technology (now University of SA).
Since January 2020 Mr Dunn has managed a team of engineers that provides technical support to customers primarily related to Molycop grinding media products. For 16 years prior to 2020 Mr Dunn worked primarily as Sales & Marketing Manager for Grinding Media.
What are the uses to which the Australian produced Molycop forged balls are put, and can be put?
Mr Dunn said the:[37]
(a)largest sizes (125mm to 140mm) are used in SAG mills, and are unlikely to be used in ball mills (there may be rare exceptions);
(b)smallest sizes (25mm to 80mm) are used in ball mills, and are unlikely to be used in SAG mills (again, there may be rare exceptions); and
(c)two intermediate sizes of 94mm and 105mm are used in ball mills and in SAG mills.
Factors affecting the choice between using HiCr balls or Australian produced forged balls in ball mills
[37] Ibid [15].
Mr Dunn said he agrees with the benefits of HiCr balls as outlined by Mr Steinier namely that HiCr balls:[38]
(a)abrade “much more slowly” than forged balls which results in less iron fines in the slurry than when using forged balls; and
(b)have better surface chemistry and pulp chemistry, both of which can assist the efficiency of froth flotation, the most used method of separating valuable mineral particles from gangue.
[38] Ibid 81 [27-30].
Mr Dunn also adds that the benefits:
(a)are “variable” – being impacted by ore type, water quality and chromium percentage; and
(b)“have not been generally accepted within the mining industry as always occurring”. Mr Dunn referred to having read “several technical papers”.
Mr Dunn said demonstrated improvements have not been shown to be “vast”, as described by Mr Steinier, and in his experience:[39]
…such improvements have been generally accepted by the mining industry as: improvements which can occur; but which may not occur in all froth flotation and leaching operations; and which if they do occur are usually small improvements; and have not been demonstrated to be “of vast assistance to the process efficiency” as stated by Mr Steinier in the last sentence of his witness statement.
[39] Ibid [30].
Further, if there are some advantages in froth flotation or leaching from the use of HiCr balls, Mr Dunn said any advantages are irrelevant in mineral recovery operations that do not use either method.[40]
[40] Ibid [31].
Mr Dunn outlined the advantages of using forged balls over HiCr balls:[41]
32.1. Greater impact resistance, resulting in less breakage. That is an overwhelming advantage in SAG mills but can be a significant advantage in some ball mills, including larger ball mills and grate discharge ball mills;
32.2. Lower cost per tonne. Chromium is expensive, and mostly for that reason HiCr balls usually cost more than forged balls;
32.3. Reliable supply from an Australian manufacturer. Since our forged balls are produced in Australia, from raw material sourced within Australia, they are supplied to Australian customers without the difficulties that can occur with international shipping.
(emphasis added)
[41] Ibid [32].
While Mr Dunn acknowledged mines make their choice of balls based on relative benefits and costs, from a technical capability standpoint, in Mr Dunn’s opinion “Australian mines can use either HiCr or Australian produced forged balls in any ball mill they operate”. In Mr Dunn’s experience the main determinative factor is cost.[42]
[42] Ibid [33].
Mr Dunn doubted Mr Steinier’s evidence that most mines in Australia have switched from forged balls to HiCr balls but he agrees that “many” have switched.[43]
Current uses of forged balls and HiCr balls in Australia[44]
[43]Ibid, [24] and [34]; Transcript page 119 lines 1-8.
[44] Exhibit 1, Tribunal Book, Annexure F, Rick Dunn – Supplementary Witness Statement [15].
Mr Dunn disputes Mr Steinier’s assessment of the number of mills using forged or HiCr balls. According to Mr Dunn, from his examination of Molycop’s internal customer information and data, he believes “it is likely that more Australian mineral processing plants use forged media in their ball mills than use HiCr”.
Are there uses to which the Australian produced forged balls are put or can be put to which HiCr balls are put, or capable of being put?
Mr Dunn’s evidence was that:
20. HiCr balls are put to all the uses that our Australian produced forged balls are put with the exception of use in SAG mills.
22. HiCr balls are used in ball mills that grind all the different kinds of mineral ores that our Australian produced forged balls are used to grind in ball mills.
…
24. Since HiCr balls became available in Australia, many mines have switched to HiCr balls from Australian produced forged balls for use in their ball mills. There have been several cases in my experience where mines or ore processing operations have switched to Australian produced forged balls after using HiCr balls in their ball mills.
(emphasis added)
CONSIDERATION
Issues not in dispute

Most of the purely technical and scientific evidence is not in dispute. It is not in dispute that:
(a)forged balls have a carbon content of less than 2%. Balls with a higher carbon content and a high chromium content are unable to be forged as they are less impact resistance and prone to cracking. As a result, higher chromium content balls must be cast;
(b)forged balls and HiCr balls have the features and properties set out in the table at paragraph 72 above;
(c)HiCr balls are unsuitable for use in SAG mills; and
(d)many mines in Australia have switched from using forged balls to using HiCr balls.
Interpretation of the TCO Regime
Vega submitted that Part VA of the Act is beneficial legislation.
What does it mean to submit that Part XVA of the Act is beneficial legislation? When legislation is described as “beneficial”, the High Court said the legislation should be interpreted “as to give the fullest relief which the fair meaning of its language will allow”: Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 (Isaacs J). This principle, however, only arises where there is ambiguity in the legislative language.[45]
[45] Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384-385.
The Full Court explained in Automotive Components Limited (Receivers and Managers appointed) (in liquidation) v Secretary, Department of Industry and Science [2016] FCAFC 6; 237 FCR 468:
[43] …ACL’s submissions regarding the beneficial nature of the ATS do not take the appeal far. As a general proposition we accept that the Regulations should be construed so as to give the fullest relief that a fair reading will allow, but the Court must construe the provisions according to conventional principles of statutory interpretation. In our view the meaning of reg 2.22(2)(b) is plain. It must also be accepted that the drafters will have been concerned to ensure that persons who are eligible to benefits are included, and also to ensure that those who are not eligible are excluded…”.[46]
(emphasis added)
[46] Citing Luttick Australia Pty Ltd v Export Development Grants Board[1985] FCA 173; (1985) 5 FCR 589 at 594 (Toohey J); Rose v Secretary, Department of Social Security[1990] FCA 59; (1990) 21 FCR 241 at 243-244 (Lockhart, Gummow and Einfeld JJ); Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374 at [74] (Murphy J).
In Secretary, Department of Employment and Workplace Relations v Bhagwandas [2023] FCA 398; 179 ALD 460 Murphy J cited Bull and said:
The interpretation adopted must though “be restrained within the confines of the actual language employed and what is fairly open on the words used”: Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622 at 638.
The Applicant’s submission does not take the matter very far. There was nothing specifically drawn to the attention of the Tribunal such as a necessary ambiguity in the language which would elevate the interpretation to a level different to that in the ordinary course.
Accordingly, the Tribunal will construe the relevant provision in accordance with a fair reading according to conventional principles of statutory interpretation.
Use of Expert Evidence
Although the question of the actual use of the goods is a question of fact. The decision maker may be guided by relevant expert evidence where appropriate.
In relation to the reasonable uses to which the TCO Goods may be put Vega submitted this must be determined “in the context of trade or commerce”[47] and therefore:[48]
[47] Referring to Nufarm Australia Ltd v Dow Agrosciences Australia Ltd (No 2) [2011] FCA 757 applying Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.
[48] ASFIC, [3.15]; Applicants Written Closing Submissions, [15].
the arbiters of whether a use is reasonable must be those who:
(a)use;
(b)are otherwise expert in the use of;
(c)manufacture; or
(d)trade in,
thegoods described in a TCO.
Vega puts forward Mr Steinier as the appropriate arbiter of the reasonable uses to which the TCO Goods could be put.
The Respondent disputes that the arbiter of what constitutes a “reasonable use” of the TCO Goods is a matter for the expert and said it is a matter for the Tribunal.[49] No authority for the proposition put by the Applicant was cited.
[49] Respondent’s Written Closing submissions, [94].
The question of the reasonable use of the goods is a question of fact. The decision maker may be guided by relevant expert evidence where appropriate.
Test for Determining Whether Core Criteria Met
It is accepted that the proper analysis of whether the goods in question are “substitutable” is that articulated by Robertson J in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 (Nufarm), at [57] as follows:
A practical analysis would be:
(47)what are the TCO goods?
(ii)       to what use or to what uses are they put or can they be put?
(iii)what are the goods claimed to be substitutable?
(iv)       to what use or to what uses are they put or are they capable of being put?
(v)        are the uses in (ii) and (iv) or any of them corresponding uses?
This practical analysis has been endorsed by the Full Federal Court in subsequent decisions: Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43; 275 FCR 652 (Alstom No 1, at [53], and Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109; 293 FCR 381 (Alstom No 2, at [68]).
It is important to not take a too scientific or technical approach: Nufarm, at [56].
What is interesting to note in the practical analysis from Nufarm, is that there is no mention of the “quality” of the goods under consideration. This is because it is not relevant to whether a good is comparable for the purpose of the TCO regime. In Amcor Ltd v Comptroller-General of Customs [1991] FCA 806; 105 ALR 216 (Amcor) the Full Federal Court explained that quality or superiority, by reference to the purpose and context of Part XVA, is not relevant as follows:
[36] In the ordinary case where imports compete with Australian products, price and quality will vary. The imported product, even with a substantially greater price because of duty and other factors, may nevertheless be preferred by the purchaser over the local product because of other considerations such as perceived superior quality. This is a matter for the market place.
[37] Where a TCO is sought, if the decision-maker is not satisfied that goods serving similar functions are not produced in Australia then that is the end of the matter: Comptroller-General of Customs v Kawasaki Motors Pty Limited (Unreported, 4 November 1991) at pp 15-17. It is not to the point that goods being produced in Australia, and identical to the imported goods the subject of the TCO application, are more expensive than, or inferior in quality to, the imported goods. Those are matters that are left to the market place.
(emphasis added)
(47)What are the TCO Goods
The Full Federal Court in Alstom No. 2 identified at [22] what TCO goods are:
…the TCO goods are any goods that fall within the description of the goods in the TCO application. The TCO goods are not the specific goods sought to be imported
(emphasis added)
Similarly, in Alstom No.1 (at [53]) the Court held that the “the Act is concerned with the particular way goods, as described in a TCO application, are to be used” (emphasis added).
The TCO Goods, as Gazetted, are the TCO Goods the subject of the TCO Application (see para #31 above).
There is no qualification as to the size of the balls, merely that they contain not less than 10% chromium content, and are cast steel grinding balls.
(ii) To what use or to what uses are they put, or can they be put?
The Full Federal Court in Alstom No.1 described the Tribunal’s task as follows:
[56] …the Tribunal’s task is not to identify a broad genus of use but the use of the actual goods described in the TCO application
It is not uses to which any grinding balls can be put, but what are the uses of grinding balls with the description specifications in the TCO Order.
What Are The Uses of The TCO Goods
Based on the evidence, the Applicant contends that that the actual use of the TCO Goods is:[50]
…to facilitate the processing of minerals by liberating the valuables from the gangue while simultaneously optimising the surface chemistry of the particles and the pulp chemistry in the ball mill and the flotation tank or the leaching vessel during the subsequent separation and recovery of the valuables.
[50] ASFIC, [3.17].
The Applicant said the Molycop Goods are primarily used in SAG mills “but their use adversely contaminates the pulp and alters the surface chemistry of the particles with deleterious consequences for the mineral recovery process”^.[51]
[51] Ibid [3.18].
The Comptroller contends that “the applicants case fails on a fundamental factual level, because they have failed to identify all the uses to which (indistinct) goods can be put, and all the uses to which the forged balls can be put”.
Vega contends that the Respondent’s case is fatally flawed for the following reasons:[52]
(a)it identifies the TCO goods as metal grinding balls simpliciter. In doing so it identifies a broad genus of goods, rather than identifying the goods as described in the TCO, the very practice that was excoriated by the Full Court in Alstom No.1;
(b)it identifies the use to which the TCO goods are put as being no more than grinding mineral ores.[53] This is the use ascribed to the broad genus of grinding balls or grinding media, rather than the use of the goods that are described in the TCO application. This error of law infects the whole of the Respondent’s case, both in the Respondent’s analysis of the prevailing law and the nature and purpose of the evidence led by the Respondent.
[52] Applicants Written Closing Submissions, [29]-[30].
[53] Ibid.
The proposition put forward by the Applicant is too narrow and not an actual reflection of the description of the TCO Goods. This wording is not found anywhere in the application, and it does not accord with the evidence.
In Alstom No. 1 at [52], the Full Court said:
Notably also, the regime ascribes great importance to the way goods are to be described in a TCO application and gives the Comptroller power to check and then address unsatisfactory descriptions be he or she ever gets to exercise the power to issue or not issue a TCO pursuant to s. 269P of the Act.
The TCO Goods stated use in the TCO Application is (Stated Use):
Stated Use:
For the grinding of rocks and minerals in a mining mill
The stated use is relevant, although not solely, to an assessment of the intended use of the TCO Goods, and more importantly must reflect Vega’s own understanding of the use of the TCO Goods at the time of making the TCO Application. Its importance is obvious given that it forms part of the Gazette notice.
The Tribunal notes there is no limitation in the Stated Use to any specific mineral or rock. Nor is there any limitation to a particular type of mining mill.
Primarily the TCO Goods are used as grinding media in the grinding process of many different kinds of mineral ores (such as iron, gold/copper. Lead-zinc, bauxite and coal) in ball mills.[54] Consistent with the Stated Use Mr Steinier does not single out any type of ore which cannot be ground using the TCO Goods in his statement. Rather he said:
47. Cast balls that have a HiCr content were introduced in Australian mines during 1990-2000 and are now the industry standard for ball mills in Australia for non-SAG applications
(emphasis added)
[54] Exhibit 1, Tribunal Book, Annexure RD-E, 110-114.
Mr Steinier also clarified that HiCr balls are not used in ball mills in Australia to pulverise coal or for use in SAG mills.[55]
[55] Transcript page 21 lines 11-,24 and page 34 lines 14-21.
To What Use Could the TCO Goods be Put
In relation to what potential uses the TCO Goods are capable of being put. Those uses must be reasonable. The Court in Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd [2012] FCAFC 78; 203 FCR 129 (Toyota), at [19] found that a reasonable use need not be a “sensible commercial use”.[56]
[56] Followed in Comptroller-General of Customs v Alstom Transport Australia Pty Ltd (27 June 2022) [2022] FCAFC 109; 293 FCR 381; 176 ALD 336, at [24].
In Toyota the Full Court held that not every “conceivable use will suffice”, the potential use must be a reasonable one. The Court gave the following example of an unreasonable use at [4]:
“A spoon may be used to dig a trench but Parliament cannot have intended for a spoon to be substitutable goods for an excavator”.
In Toyota the Full Federal Court found that pedestrian-operated reach trucks were substitutable goods for driven forklifts as both were capable of lifting 1,200kg to at least 5m as per the TCO description. The Court sympathised with the Tribunal’s “sensible commercial approach” which was a finding that as the goods are not practically or competitively comparable, that they were not substitutable. The Court held this approach was in error and was not permitted by section 269B(3).
In Nufarm, the Court, on appeal from the Tribunal, was considering different herbicides. The herbicides operated differently in that one was used before weeds emerged, and the other after. The Court held:[57]
Merely to state that one herbicide operates in a different manner to another does not establish that the goods were not substitutable because it leaves open that the goods have a corresponding use, that is, in killing the same weeds in the same crops
[57] Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24, at [50].
The Court in Nufarm held that the Tribunal erred by focusing “on scientific matters such as the properties of the goods and how they work”.[58]
[58] Ibid at [56].
The case law demonstrates that the focus is on the ultimate outcome (end use), rather than the technical details of how that outcome is achieved.
The Evidence
The Tribunal found Mr Steinier’s oral evidence confusing at times. He often did not answer the questions put to him directly, and instead appeared to answer a question he wished he had been asked. It made the evidence very difficult to understand at times. Mr Steinier was clearly frustrated by the questions, losing patience with what he considered to be a lack of understanding about the field in question.
The Tribunal suspects Mr Steinier’s frustration occurred because of his belief, possibly warranted, that the TCO Goods are far superior to the average forged grinding ball, in terms of optimising efficiency, which is a commercial entities focus. This, however, is not the test under the TCO regime.
While empathy can be given to an expert who considers they are not being asked the right questions, or that they are not being understood, confusing answers or indirect answers do not assist the Tribunal.
At one point during the hearing the following exchange occurred:[59]
Okay. Is there any reason why this process is called digestion, and the different process you were referring to in your statement is called leaching?---Why have you called a ball mill – pulverising mill, it’s a ball mill, it’s not, okay? So – explain with the words, sorry? Don’t ask me, I will refuse to tell what I don’t want to tell.
SENIOR MEMBER: Well, no, Mr Stein[i]er, you have to answer the questions, and just try to - I know it can be difficult at times when you’re being cross-examined, but you don’t need to point out what Mr Northcote may or may not have done. Just, as I said, just try to focus on - - -?---I can try, I can try.
[59] Transcript page 41 lines 4-23.
Refusing to answer a question is just not helpful. Following this exchange Mr Steinier answered the question:
So, is there a difference - what’s the difference, in your opinion, between leaching and digestion?---It’s a different industry which are using a different vocabulary.
So, it’s the same technique, different vocabulary?---Exactly.
Thank you?---It’s a way to separate and to extract something from a gang[ue]
The parties appeared to be tackling the issue from different perspectives. The Comptroller was focussed on what metals the balls could be used to grind, whereas Mr Steinier’s frustration appeared to be that the metal to be ground was not the relevant question, but which machine that was going to be used for the grinding.
Mr Steinier was cross-examined about the balls used at a number of specific mines. The evidence was as follows.
Alumina Mine (Yarwun Refinery) - Queensland
When asked whether HiCr balls be used in two ball mills at an alumina refinery in Gladstone instead of the forged balls which are being used, Mr Steinier said:[60]
No, because of the machine. It’s a process problem, it is not a metallurgic problem.
[60] Ibid line 36.
When asked whether he had published or done any research into any deleterious effect by using high – forged balls instead of high chrome when grinding alumina at an alumina refinery, he responded:
Again it’s - again, you’re confusing a product with an application. There is a simple technical reason why at Gladstone you can (indistinct) now it’s high chrome. All of the plant around the world are for probably high chrome. There is one technical issue. Do you know the mill they are using it.[61]
And again:[62]
Could high chrome balls be used in those two ball mills at Yarwun instead of the forged balls which are being used?---No, because of the machine. It’s a process problem, it is not a metallurgic problem. Those machine are very obsolete machine, they are not - they are rather small mill, because keep in mind that is a twin chamber mill. Do you know that it’s a twin chamber mill? And a twin chamber mill has a very small grinding chamber for balls, and I can explain to you why most ore - the bauxite, except the WA with site mill, but why Rio Tinto, Alkan, (Indistinct), all the people around the world are using high chrome for good benefit. There is an important word, for your knowledge, caustic. You have to learn that word, and then you will understand. But the twin chamber mill, it’s an obsolete machine, old machine, which is giving penalties in operation to (Indistinct) or to Gladstone. Happy to show for you. It is nothing to do with the process, nothing to do with the bauxite [sic], it is related to the machine, the mill.
[61] Ibid page 39 lines 9-13.
[62] Ibid pages 41 34-47.
…
I am asking you whether - so forged balls have been used at Worsley for a long time, that’s correct?---It took time for them to understand that this was a wrong choice.
But as of, for example, July 2021, they were using forged balls, weren’t they?---All the mines in Australia, when I arrived in 92, were using forged ball. All.
…
But they have used forged?---All the mines have used forged in the past.[63]
(emphasis added)
Magnetite Mine - Tasmania
[63] Ibid page 36 line 38.
In relation to a magnetite iron-ore mine in Tasmania Mr Steinier again confirmed that the mine had previously used forged balls and had now changed to HiCr balls “for economic reasons”:
And so what I’m asking you is; from all your knowledge in relation to grinding media – which is extensive – and considering that forged balls are being used in the Savage River right now, can forged balls be used in the ball mills at that operation?---As I said, I repeat, you are concentrated on gri[n]ding and on grinding; every single mill in Australia has been running for forged. That argument is clear.
Can they be used? Yes or no?---It’s possible. It’s possible.[64]
(emphasis added)
Copper/Gold Mine - New South Wales[65]
[64] Ibid page 48 line 40-47.
[65] Exhibit 1, Tribunal Book, Annexure C, Rick Dunn - Witness Statement, [99].
In relation to another copper-gold mine in New South Wales, Mr Steinier again acknowledged that although the mine had been using HiCr balls it was switching back to forged balls.[66]
[66] Transcript page 67 line 36-37 & page 69 line 31-35.

What is apparent from Mr Steinier’s evidence is that over the last few decades some mines have, or are in the process of, transitioning from forged grinding balls to HiCr grinding balls. Mt Steinier’s evidence was:
They are in transition, are they?---Yes, they are high chrome now. So, when there is in transition you have to make a choice, I don’t want to elaborate. Worsley make a test, the test is very positive, they are in transition. Forged ball, it’s over.
But forged balls have been sold to Worsley as recently as last month?---It’s a transition. How many mills they have? You cannot change everything in one, it’s always a question of budget, a question of decision, maybe contractual, who knows, but I can tell you that it’s over.
(emphasis added)
What this evidence confirms is that these mines have been using forged balls for the same uses they are now using HiCr balls.
The next exchange clarifies that essentially the HiCr balls constitute new technology which is replacing the older forged ball technology:[67]
All the mines in Australia can run with forged?---But no one is running with forged. You can still using - you can still using a cassette to play the music, but you are not using that anymore; it’s obsolete. It’s finished. There is advantage; that’s why the mine are switching, and they will not come back
[67] Transcript page 49 line 7-10.
Both witnesses agreed that the TCO Goods can be used to grind sand, to make it finer, for building material use.[68]
[68] Transcript page 36; Dunn at 13.3, with the substitution of “sand” for “gypsum”, the only correction made at Transcript page 83 line 39-40.
The evidence also demonstrated that the TCO Goods can be used:
(a)to grind coal;[69]
(b)to grind metal slag and other by-products of smelters;[70]
(c)to grind raw materials prior to being fired in a cement kiln;[71]
(d)to grind cement clinker produced by a cement kiln to cement powder;[72]
(e)in tower mills, which are vertical rotating mills.[73]
[69] Transcript page 37 lines 29-32.
[70] Transcript pages 36-37.
[71] Transcript page page 66 lines 35-38.
[72] Mr Steinier said that 100% of the mills grinding cement around the world are (using) high chrome: Transcript page 23 lines 38-47.
[73] Exhibit 1, Tribunal Book, Annexure E, Philippe Steinier – Supplementary Evidence, 137, [7(c)].

(iii) What are the goods claimed to be substitutable?

In Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2023] AATA 3498, at [61], the Deputy President found that the emphasis by the Full Court on the primacy of the description (agreed description) in the TCO application (or agreed description as set out in the Gazette notice) means that this limb must be informed by the description of the claimed substitutable goods in the objection.
Here, the description in the objection notice was:
The substitutable goods are locally manufactured ferrous grinding balls, whether or not containing alloys, forged, with diameters in the range 22mm to 170mm (inclusive).
Molycop has confirmed that in fact, the size range is less than in the description and that with the exception of the three sizes of 115mm, 150mm and 160mm in the Sag Balls technical specifications at RD-B, the size range is 25 to 140mm.[74]
[74] Exhibit 1, Tribunal Book, Annexure C, Rick Dunn - Witness Statement at [8] - [10] and Annexures RD-B, RD-C and RD-D.
Therefore, the purported substitutable goods are forged steel grinding balls, with or without alloys, sized between 25 to 140mm.

(iv) To what use or to what uses are the Molycop Balls put or are they capable of being put?

To be “capable of doing something” is defined in the Oxford Online Dictionary as:
Having the ability, fitness or quality necessary to do or achieve a specified thing
The ordinary meaning of a word must be taken to mean its ordinary meaning within the context of the legislative scheme in which it is found. This is set out in section 15AB of the Acts Interpretation Act 1901 (Cth) (“AIA”) which provides relevantly that:
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act
(emphasis added)
In Stevens v Kabushiki Kaisha Sony Computer Entertainment and Others (2005) 224 CLR 193, at 230 McHugh J said at [124]:
In determining issues of statutory construction, the text of the relevant statutory provision must be evaluated not only by reference to its literal meaning but also by reference to the purpose and context of the provision……For purposes of statutory construction, context includes the state of the law when the statute was enacted, its known or supposed defects at that time and the history of the relevant branch of the law, including the legislative history of the statute itself. It also includes in appropriate cases “extrinsic materials” such as reports of statutory bodies or commissions and parliamentary speeches – indeed any material that may throw light on the meaning that the enacting legislature intended to give to the provision. That is the process required by the modern approach of the common law to statutory construction. In many jurisdictions, the common law principles have been incorporated, extended or modified by statute. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires a court construing federal legislation to have regard to its purpose. Section 15AB of that Act authorises the use of various forms of extrinsic material to determine the meaning of that legislation.
(emphasis added)
See also the High Court decision in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, at 519 where the Court noted:
[39] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(emphasis added)
In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] Kiefel CJ, Nettle and Gordon JJ explained the starting point as follows:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, the meaning must be rejected.
This is reflected in section 15AA of the Acts Interpretation Act 1901 (Cth) which provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
More recently in Commissioner of Taxation v Auctus Resources Pty Ltd [2021] FCAFC 39; 284 FCR 294, at [68] and [69]:
… The end object of the process of statutory construction is to give the words of the particular statute the meaning which the legislature is taken to have intended them to have: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [43]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26]. The preferred construction is reached through common law and statutory rules of construction, the application of which involves the identification of a statutory purpose from any express statement in the statute, or by inference from the text and structure of the statute and by appropriate reference to extrinsic materials: Lacey at [44].
(emphasis added)
The purpose and context of Part XVA was described by the Full Federal Court in Amcor:
[35] The purpose of the Customs Act is to raise revenue and to protect Australian industry against competition from imports. When there is no comparable Australian product being manufactured, or capable of being manufactured, importers and consumers should not be burdened with the payment of duty at the full rate or in appropriate circumstances at all. Hence the mechanism of the TCO is provided by Pt XVA.
Mr Dunn said the Molycop Balls are used as follows:
13.1. Predominately, in the comminution (size reduction) of mineral ores, as the grinding media in SAG mills and ball mills operating at ore processing plants at various mines;
13.2. Pulverising coal before it is fed into a coal-fired power station, as the grinding media in ball mills at regional power stations;
13.3. Grinding ~~gypsum~~ [later corrected to sand] and other materials for use in building materials, as the grinding media in ball mills operated by building materials companies; and
13.4. Grinding byproducts from other metallurgical processes such as lead smelters, zinc refineries, aluminium smelters, and copper refineries. These types of applications are relatively minor compared to the use of forged media in mineral processing applications.
Mr Dunn said the Molycop Goods are used at over 70 different mine sites processing a wide range of mineral ores including: gold; copper; gold/copper; zinc/lead; zinc/lead/silver; nickel; bauxite; lithium; magnetite and tin.[75] This evidence was unchallenged.
[75] Transcript page 112, 120 & 126.
During the hearing Mr Dunn also told the Tribunal that forged balls could be used to grind coal in ball mills prior to burning in cement kilns.[76]
[76] Transcript page 135 lines 10-22.
Mr Dunn is the person with the best knowledge of the circumstances in which Molycop clients use the Molycop Balls.

(v) Are the uses in (ii) and (iv) or any of them corresponding uses? Are they substitutable?

The word “corresponding” contained in the definition of “substitutable goods” is not defined in the Act and should be given its ordinary meaning “in light of its context and purpose”.[77]
[77] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[2009] HCA 41; (2009) 239 CLR 27 at 31 [4], 46-47 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[2012] HCA 55; (2012) 250 CLR 503 at 519 [39]; SZTAL v Minister for Immigration and Border Protection[2017] HCA 34; (2017) 262 CLR 362 at 368 [14].
“Correspond” is defined in the Macquarie Dictionary Online to mean “to be similar or analogous; be equivalent in function…”. The Oxford Online Dictionary provides the following definition of “corresponding”:
Analogous or equivalent in character, form, or function; comparable
As discussed above, it is appropriate to have regard to the extrinsic materials in light of section 15AB of the AIA and the modern approach to statutory construction that has been explained in the cases referred to above.
The Second Reading Speech to the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992 the then Minister for Small Business, Construction and Customs, explained the tariff system and its objective as follows:
The present commercial tariff concession system allows duty-free entry of imports where there are no goods serving similar functions made by Australian industry in the normal course of business. The objective of the system is to ensure that industry is not taxed by the tariff where it is serving no protective function. By lowering input costs, the concession system is an important element in the Government's program to improve the international competitiveness of Australian industry. Once a commercial tariff concession order is in place, any importer can use it to import goods described in that order duty free.
The Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992 (Bill) introduced the current definition of “substitutable goods”. The Explanatory Memorandum to the Bill provides “it is intended” to apply to “all substitutable goods (regardless of their degree of substitutability).”
The descriptions and explanations in the explanatory extrinsic materials are in accord with the ordinary meaning of “correspond”.
The parties took the Tribunal to numerous case examples. The Tribunal does not propose to traverse all of the cases. As Robertson J noted in Nufarm (at [48]), “there is no precedent value in findings of fact: North Australian Cement Limited v Federal Commissioner of Taxation (1989) 89 ATC 4765 at 4768”.
In Re Vulcan Australia Pty Ltd and Comptroller-General of Customs [1994] AATA 150; (1994) 34 ALD 773 the Tribunal found that small Australian produced electric and gas heaters, capable of heating one room, were substitutable goods to the TCO goods which were portable kerosene fuel heaters.
In Toyota - the Full Federal Court substituted a decision that Australian produced pedestrian operated forklift trucks were substitutable goods for the TCO rider operated forklift trucks because, even though the rider operated trucks were able to move loads much more quickly, they could both lift loads of up to 1200kg to heights of up to 5m, and they were both used in some of the same warehouses, albeit only in exceptional cases.
In Nufarm, as discussed at paragraph130 above), Robertson J said:
[50]…Merely to say that one herbicide operates in a different manner to another does not establish that the goods were not substitutable because it leaves open that the goods have a corresponding use, that is, in killing the same weeds in the same crops.
The emphasis in all of these examples is the focus on the outcome (i.e., end use of the good) rather than the process by which it achieves that use.
A single corresponding use is also that is required to find the Molycop Balls are substitutable goods for the TCO Goods. See Toyota, at [14]:[78]
The definition [of substitutable goods] will be satisfied even if the substitutable goods (in this case, corrugated fibre board) have a number of uses, only one of which corresponds with a use to which the imported goods can be put.
[78] See Riverwood Cartons Pty Ltd v Chief Executive Officer of Customs (1997) 77 FCR 493 at 497E, referred to in Toyota, at [14].
Mr Steinier’s technical/expert evidence was unchallenged. The Tribunal is of course mindful that Mr Steinier was not an independent expert.
Mr Steinier was often brusque and argumentative as outlined above. By contrast Mr Dunn answered the questions respectfully to the best of his knowledge.
Despite this style difference, the Tribunal accepts that Mr Steinier was the superior witness in relation to the scientific and technical evidence. He had the qualifications and expertise to opine on those matters. On the other hand, Mr Dunn agreed during cross-examination that he had no knowledge of some of the subject matter, or explained that he was not an expert in that particular area. For example:
(a)no personal knowledge of, or experience with, pulp chemistry;[79]
(b)no personal knowledge of iron hydroxide formation, a key element of pulp chemistry contamination when forged balls are used in ball mills;[80]
(c)no detailed knowledge of magnetite processing;[81]
(d)not an expert in material science;[82]
(e)cannot comment on quenching and phase transformation of forged balls, an essential step in their manufacture and properties;[83]
(f)no personal knowledge of air mills, only seen a few photos (sic);[84]
(g)not an expert in electrochemistry and passivation;[85]
(h)doesn’t have a lot of experience in cement applications and coal milling.[86]
[79] Transcript page 98 lines 40-42.
[80] Ibid page 98 lines 44; and page 99 line 4.
[81] Ibid page 112 lines 22-23.
[82] Ibid page 114 lines 34-36.
[83] Ibid page 115 line 40-44.
[84] Ibid page 100 lines44-45.
[85] Ibid page 117 lines8-9.
[86] Transcript page 134 lines 38-39 and see exchange between parties and the tribunal at page134 line 43 – page 135 line 4.
Vega identified the following deficiencies in Mr Dunn’s evidence (with which the Tribunal agrees with):
36. During his x-x Mr Dunn, inter alia,:
(a)either agreed with, or was unable to comment on, the entire body of Mr Steinier’s scientific and technical evidence;
(b)agreed that –
(i)the description in the Molycop brochure[87] of the use of HiCr balls in mining applications –
[87] Exhibit 4, Molycop HiCr Cement Applications, (undated brochure).
A]   was correct,[88]
[88] Transcript page 103 line 5 and page 110 line 24-25.
B]   was consistent with Molycop's views,[89]
[89] Ibid page103 line 9-10.
(ii)Molycop's potential customers wanted HiCr balls for the two applications described in the brochure,[90]   and
(iii)Molycop marketed and sold its HiCr balls for those applications;[91]
(c)was that unable to quantify, or even estimate, how many mines had switched from forged balls to HiCr balls for use in ball mills, or what had happened to Molycop's sales since HiCr balls were introduced to the Australian industry;[92]
(d)admitted that he was able to find out how many mines had switched from forged balls to HiCr balls;[93]
(e)admitted that when he gave evidence that Molly Cop supplied over half the ball mills in the industry "I was sort of referring to mining operations".[94]
[90] Ibid page 110 line 34-35.
[91] Ibid page 110 line 37-38.
[92] Ibid page 122 line 27-32.
[93] Ibid page122 lines 18-19.
[94] Ibid page 118 lines 17-18 Throughout his cross-examination Dunn used various expressions such as mining plants, mine sites, mills and ball mills interchangeably when questioned about his data and estimates of HiCr ball usage.
Vega points out that the only substantive evidence in chief of Mr Steinier that was challenged by the Comptroller was his assertion that the industry had taken up the use of HiCr balls in ball mills almost exclusively. This is where Mr Dunn’s evidence differed with that of Mr Steinier. Ultimately the exact number of mines using HiCr balls is irrelevant to the Tribunal’s inquiry here. The Tribunal does not propose to traverse the many arguments about whose evidence should be preferred in relation to this issue. It simply does not assist in the making of the correct or preferable decision. Both parties agree that some mills use HiCr balls, and that is sufficient.
Mr Dunn’s second statement was filed in response to the supplementary statement of Mr Steinier, and was initiated[95], and drafted on Mr Dunn's behalf[96], by the Comptroller with the request that he complete the statement with the necessary figures. Vega points out that:
38. The statement was replete with very general allegations that the information contained in the annexures to Mr Steinier’s supplementary statement was grossly incorrect. Mr Dunn deposed that his allegations were based on Molycop’s ‘sales records’.
39. The Respondent also put those allegations to Mr Steinier during cross-examination. However, the Respondent did not ask to see the data, or any samples thereof, on which the allegations were said to have been based, nor did it ask for any of the primary material to be produced to the tribunal, nor did it even ask for summaries to be prepared or produced. In those circumstances alone, very little, if any, weight should be given to Dunn's evidence.
40. Further, when cross-examined as to the precise nature of his allegations he again equivocated as to whether he was referring to mining operations, mills or ball mills.
41. Mr Dunn also stated that, with regard to the 32 plants in Mr Steinier’s list to which Molycop was supplying forged balls “It may be perhaps they are also acquiring high chrome media”.[97]
[95] Ibid page123 lines 20-27.
[96] Ibid 123 lines 29-30.
[97] Ibid 124 lines 30-35.

The areas in which Mr Dunn was not an expert were technical, scientific areas.
The Tribunal prefers the evidence of Mr Steinier in relation to the scientific evidence.
However, those areas are not determinative of the correct or preferable decision.
Mr Dunn’s evidence of how the respective balls were used was clear - “HiCr balls are put to all the uses that our Australian produced forged balls are put with the exception of use in SAG mills”.[98]
[98] Exhibit 1, Tribunal Book, Annexure C, Rick Dunn Witness Statement, [20].
If HiCR balls are now undertaking the same activities as forged balls were previously, they must be, despite any technological advancements, substitutable. Mr Steinier essentially acknowledged this proposition.[99]
[99] Transcript page 46 lines 22-38.
During cross-examination Mr Steinier accepted that coal mills can grind with forged balls:[100]
Could forged balls be used in that ball mill operation of grinding coal prior to use in a cement kiln?---Not – those mill are not using for them.
I understand they’re not, and my question is – and this is because of the law which requires us to look at not only actual uses but potential uses – could forged balls be used in those mills you have described grinding coal in a ball mill?---I repeat all the mill can grind with forged.
(emphasis added)
[100] Transcript page 66 lines 40-46.
Mr Dunn explained that in coal mines forged media could be used in a ball mill to mill coal, but the consumption rate of the forge balls is likely to be higher.[101]
[101] Ibid page 135 lines 18-29.
Mr Steinier was then asked whether generally speaking, forged balls could be used in any ball mill that high chrome could be used. Mr Steinier said yes, “until it’s obsolete”.[102]
[102] Ibid page 67 line 23.
Mr Steinier then confirmed that his opinion is really about the fact there are some benefits to using HiCr balls over forged.[103]
[103] Ibid page 67 lines 29-31.
The Tribunal also heard evidence regarding Australian mines which had switched from Australian produced forged balls to HiCr, or vice versa; in the ball mills (see paragraphs 140-148 above).
Each of those switches demonstrates a corresponding use.
Even if the chemical process of flotation and leaching was relevant to the issue of reasonable potential uses of HiCr balls, it would not be determinative, given the following two mines do not use those processes and yet they use HiCr balls as those described for the TCO Goods:
(f)Savage River, a magnetite iron-ore mine and processing plant in Tasmania where two stages of magnetic separation are used to recover and concentrate magnetite from ground ore (no froth flotation or leaching is involved), which switched from HiCr to forged for their ball mills;[104]
(g)Worsley, an alumina refinery in WA where bauxite is refined into alumina using the Bayer process (which does not involve froth flotation or leaching), which has begun transitioning from forged to HiCr for their ball mills.[105]
[104] Ibid pages 47-48.
[105] Exhibit 1, Tribunal Book, Annexure C, Philippe Steinier – Supplementary Evidence, [7] and annexure “O-1”; Transcript pages 73-74.
The evidence demonstrates there is more than one corresponding use between the grinding balls under consideration.
The correct and preferable decision is to affirm the decision under review, because the Molycop Balls are substitutable goods to the TCO Goods.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 197 (one hundred and ninety seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D K Grigg

......................[SGD]...............................................
Associate
Dated: 8 December 2023

Date/s of hearing:

3 April 2023, 4 April 2023 and 24 April 2024

Date reserved:

24 April 2024

Counsel for the Applicant:

Mr J H Slonim

Solicitors for the Applicant:

Gross & Becroft Lawyers

Advocate for the Respondent:

Mr R Northcote

Respondent:

Self-represented

[6] Ibid s 269B.

7325	OTHER CAST ARTICLES OF IRON OR STEEL:
7325.10.00	-Of non-malleable cast iron	5%
7325.9	-Other:
7325.91.00	--Grinding balls and similar articles for mills	5% DCS:4% DCT:5%

Date/s of hearing:	3 April 2023, 4 April 2023 and 24 April 2024
Date reserved:	24 April 2024
Counsel for the Applicant:	Mr J H Slonim
Solicitors for the Applicant:	Gross & Becroft Lawyers
Advocate for the Respondent:	Mr R Northcote
Respondent:	Self-represented