West-Trans Equipment and Comptroller-General of Customs (Taxation and business) - [2025] ARTA 554

West-Trans Equipment and Comptroller-General of Customs (Taxation and business) [2025] ARTA 554 (13 May 2025)
Applicant/s:  West-Trans Equipment
Respondent:  Comptroller-General of Customs
Tribunal Number:                2023/9849

Tribunal:General Member L. McBride
Place:Sydney
Date:13 May 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the Hycover Scoop Sheeting Systems complies with the requirements of Tariff Concession Order (TCO) 2204317, previously Tariff Concession Order 0918948.

The matter is remitted to the Respondent for calculation of the refund payable to the Applicant for the subject goods with the following direction:

The subject goods are eligible for Tariff Concession Order 2204317, formerly 0918948, as the goods are a composite good that retain the essential character of “covers” and are an accessory for on-road trucks having a gross vehicle weight of not less than 7.5 tonnes.(1)

The Tribunal Notes
This matter is a test case, it concerns the refund of duty paid on the goods when first imported into Australia in 2019. In February 2023, the Duty was refunded by the Comptroller – General of Customs (the Respondent) after the goods were reclassified to Tariff Classification 8708 and subject to Red Line Processing. In December 2023, the Duty-free status of the goods was withdrawn on grounds that although the Tariff Classification under the Harmonized Commodity Description and Coding System (Harmonized System or HS) (8708.29.99) was correct the Tariff Concession Order the HS Tariff Classification is keyed to (0918948) did not apply to the Goods.
The decision remains relevant notwithstanding the Australia United Kingdom Free Trade Agreement came into force on 31 May 2023 (AUS /U.K. FTA). Under the AUS/UK FTA Part 2A- 2 “Schedule of Tariff Commitments of Australia”, goods classified under Harmonized Commodity Description and Coding System code 8708.29.99 are not subject to duty when imported into Australia. The base rate is 5% and the Staging category is EFI which means “eliminated (duty) in full”.
Article 2 of the AUS/UK FTA provides as follows:
Article 2.3 of the AUS/UK FTA incorporates the General Agreement on Tariffs and Trade 1994 (GATT) into and “made part of the Australian / UK FTA”. The stated purpose of GATT is “the substantial reduction of tariffs and other trade barriers”. The GATT was superseded by the World Trade Organisation, in 1995 (WTO). The World Trade Organisation Agreements, including the GATT are incorporated into Australian law through the Customs Act 1901 (Cth) (Customs Act) and the Customs Tariff Act 1995 (Tariff Act). Relevantly, Schedule 3 of the Tariff Act “implements the World Trade Organisation Agreements on Implementation of Article Vll of the General Agreement on Tariffs and Trade 1994”. Australia’s Schedule of Tariffs is part of the GATT 1994.
Article 2.4 AUS / UK FTA states “classification of goods in trade between the Parties shall be in conformity with the Harmonized System”.
Article 2.5 (2) AUS/ UK FTA states “Unless otherwise provided in this Agreement, each Party shall progressively reduce or eliminate its customs duties on originating goods in accordance with its Schedule to Annex 2A” (Tariff Commitments).
Article 2.11 AUS/ UK FTA states “ Each Party shall ensure, in accordance with Article VIII:1 of GATT 1994, that all fees and charges of whatever character (other than export taxes, custom duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III:2 of GATT 1994, and antidumping and countervailing duties) imposed on or in connection with importation or exportation are limited in amount to the approximate cost of services rendered, and do not represent an indirect protection to domestic goods or a taxation of imports or exports for fiscal purposes.” (emphasis added)
The Tribunal has taken into consideration in the Tribunals reasons, the aims or purposes of the Customs Act, the Tariff Act, the General Agreement on Tariffs and Trade 1994, The World Trade Organisation Agreement 1995, as amended, and the AUS / UK FTA 2023.

..................[SGD]......................................................
General Member L. McBride
Catchwords
CUSTOMS – Tariff Concession Order – Tariff Classification – Interpretation of Tariff Concession Order – composite goods – essential character – full description of the goods, any of the following – refund application –Red Line processing – subordinated legislation – statutory interpretation – whether ordinary rules of construction apply to Tariff Concession Orders- meaning of cover, words given ordinary meaning – taxing statutes construed beneficially – decision under review set aside
Legislation
Customs Act 1901 (Cth)
Customs Legislation (Tariff Concession and Anti- Dumping) Amendment Act 1992 (Cth)
Customs Tariff Act 1995 (Cth)
The Customs Tariff Amendment (2022 Harmonized System Changes) Act 2021 (Cth)
Legislation Act 2003 (Cth)
Cases
Re Gissing and Collector of Customs (1977) 1 ALD 144
Re Collector of Customs Queensland v Times Consultants [1986] FCA 413
Re Times Consultants v Collector of Customs Queensland [1987] FCA 311
Re Air International Pty Ltd and Chief Executive Officer of Customs [2001] FCA 1386
Air International Pty Ltd v Chief Executive Officer of Customs (2002) 121 FCR 149
Comptroller General of Customs v Sulo MGB Australia Pty Limited [2017] FCA 315
Primapas Pty Ltd v Chief Executive Officer of Customs [2016] FCAFC 40
Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2
Brand Developers Aust Pty Ltd and Chief Executive Officer of Customs [2015] AATA 215
Re Tridon Pty Ltd and Collector of Customs [1982] ATO 119
Voxson sales Pty Ltd v Collector of Customs [1993] FCA 609
Eichmann v Commissioner of Taxation [2020] FCAFC 155
Comptroller- General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109
Collector of Customs v Cliff Robe River Iron Associates [1985] FCA 96
Commissioner of State Revenue (Vic) v Viewbank Properties Pty Ltd (2004) 55 ATR 501; [2004] VSC 127
Australian Plastic Products Pty Ltd and CEO of Customs [1998] AATA 433
Akai Pty Ltd and Collector of Customs AAT (8075, 2 July 1992)
Zoratto Enterprises Pty Ltd and Collector of Customs AAT (007321, 23 September 1991) Toro Australia Group Sales Pty Ltd and Chief Executive Officer of Customs [2014] AATA 187
Becker Vale Pty Ltd v Chief Executive Officer of Customs [2015] FCA 525
Toyota Tusho Australia Pty Ltd v Collector of Customs [1972] FCA 282
Momcilovic v the Queen (2011) 245 CLR 1
Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389
ENT19 v Minister for Home Affairs [2023] HCA 18
Disorganised Development Pty Ltd v South Australia [2023] HCA 22
HP Mercantile Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 216
Marshall v Watson (1972) 123 CLR 640
Teece v Collector of Customs (2014) 250 CLR 664
Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 Cooper Brookes (Wollongong) Pty Ltdv Commissioner of Taxation (1981) 147 CLR 297 Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54
Western Australia v Commonwealth (1975) 134 CLR 201
TheKing v Jacobs Group (Australia) Pty Ltd [2023] HCA 23
H Lundbeck A/S v Sandoz Pty Ltd (2022) 276 CLR 170
Re SMS Autoparts Pty Ltd and Chief Executive Officer of Customs [1996] AATA 158
Re Air International Pty Ltd and Chief Executive Officer of Customs [2001] FCA 1386
Mondelez Australia Pty Ltd v Automative, Foods, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29
Khoury v Government Insurance Office of New South Wales [1984] HCA 55
Solar Juice Pty Ltd and the Comptroller-General of Customs [2022] AATA 550
Taylor v Oweners -Strata Plan No 11564 (2014) 253 CLR 531
Jones v Wrotham Park Settled Estates [1980] AC 74
Thompson v Goold & Co [1910] AC 409
Secondary Materials
Tariff Concession Order 0918948
Australia – U.K. Free Trade Agreement
General Agreement on Tariffs and Trade 1994
Harmonized Commodity Description and Coding System
The Explanatory Notes to Chapter 87 of the Harmonized Commodity Description and Coding System
Australian Boarder Force publications on Interpreting a Tariff Concession Order
Second reading speech the Customs Legislation (Tariff Concessions an Anti -Dumping) Amendment Bill 1992 Hansard, House of Representatives, 7 May 1992 at 2665)
Stroud’s Judicial Dictionary of Words and Phrases 8^th edition D Greenberg Thomson Reuters
Words and Phrases Legally Defined David Hay 2018 Lexis Nexis
Shorter Oxford Dictionary 6^th Edition 2007
Statement of Reasons
BACKGROUND

West-Trans Equipment (the Applicant) is the importer of goods known as Hycover Scoop Sheeting Systems (the Goods), a covering system for on-road trucks that typically weigh between 22,500Kg – 32,000 Kgs (22 – 32 Tonnes).
The issue before the Tribunal is whether the Goods are eligible for a concession under the Customs Act and if so whether a revenue concession is available under the Tariff Act. The Customs Act-Part XVA is headed Tariff concession orders. That Part sets out the broad administrative rules, including the requirements the Comptroller – General of Customs (the Respondent) is to take into consideration when making a Tariff Concession Order (TCO). A TCO is subordinated or delegated Legislation.
For the purposes of the Legislation Act 2003 (Cth), a TCO is a legislative instrument that reduces Customs duty that would otherwise be payable on certain imported goods. The Commonwealth of Australia Tariff Concessions Gazette gives legal effect to TCOs
The provisions of the Customs Act and the Tariff Act are relevant when construing a particular TCO. The harmonious goal of the Customs Act, the Tariff Act and the TCO regime is to provide a level of protection to the Australian manufacturing industry without penalising Australian industry by increasing the costs of imported items when Australia does not produce goods that are put or capable of being put to the same use.
In essence, a TCO is a Commonwealth Government revenue concession available to importers of certain goods. To claim a TCO, the imported goods must first be classifiable to a Tariff Classification under the Tariff Act to which the TCO is keyed.
The Harmonized System or HS is a multipurpose international product nomenclature developed and administered by the World Customs Organization (WCO). The HS is a standardized system for classifying traded products and is implemented in Australian law through the Tariff Act, specifically in Schedule 3 (Sch 3), which contains the HS Tariff Classifications.
The Tariff Act focuses exclusively on the Australian customs duty rates applicable to imported goods. Schedule 3 of that Act imposes the rates of duty based upon the nature of the goods and the country of origin. Schedule 3 is headed “Classification of goods and general and special rates of duty”. Like the HS, Sch 3 is then divided into sections and chapters. Section XVII is headed “Vehicles, aircraft, vessels and associated transport equipment”. Chapter 87 is headed “Vehicles other than railway or tramway rolling stock, and parts and accessories thereof.”
The Tariff Classification the Tribunal is concerned with is 8708. That Tariff Classification is headed “Parts and Accessories of the Motor Vehicles of 8701 to 8705.” Tariff Classification 8704 is headed Motor Vehicles for the Transport of Goods. The relevant Subheading under 8708 is 8708.2 headed “Other parts and accessories of bodies (including cabs)”. A subcategory of tariff heading 8708.2 is 8708.29.99 which is simply listed as --“other”.
When legislation uses the word “other” at the end of a list of specific items it indicates the legislature intended the scope of the provisions to cover a wide range of items not only the specific items mentioned. Depending on the context in which the phrase appears the courts may apply the ejusdem generis principle to read the word “‘other” as referring to the items that are similar or related to the specifically listed items. In the context of the HS Tariff Classification 8078 the word ‘other’ would be interpretated as including items that are parts and accessories of motor vehicles used in the transport of goods.
The Tariff Classification of the Goods is not in dispute. The parties agree the Goods are classified under the Tariff Act Sch 3 to Tariff Heading 8708.29.99 as “other”. One of the matters in issue is whether the item must be mechanical to fall within Tariff Classification 8708. Whether a part or accessor must have a mechanical function to fall under Tariff Heading 8708.29.99 is unclear. Consequently, it was useful to refer to the Harmonized System Explanatory Notes for Chapter Heading 87 and subheading 87.08 to clarify whether the items that fall under the heading Parts and Accessors are mechanical in nature. Section 15 AB (1) of the Acts Interpretation Act (1901(Cth) authorises the Tribunal to consider the HS Explanatory Notes as an aid to assist the meaning of a Tariff Heading: Toyota Tusho Australia Pty Ltd v Collector of Customs [1972] FCA 282.
On 2 September 2021, the Customs Tariff Amendment (2022 Harmonized System Changes) Act 2021 (Cth) was assented to and commenced operation on 1 January 2022. The amendments to the Tariff Act were implemented to reflect the outcome of the WCO sixth review of the HS. Consequently, the number of the TCO the subject of these proceedings changed from TCO 0981948 to TCO 2204317. The Tariff Classification keyed to the TCO remained unaltered. The papers provided by the Applicant to the Respondent intermittently refer to both codes. As the matter before the Tribunal concerns refunds of duty paid on 7 April 2019, refunded by the Respondent under TCO 0918948 on various dates in 2023, the Tribunal will continue to refer to TCO 0981948 in these reasons. Nothing turns on the change to the number of the TCO keyed to Tariff Classification 8708.29.99.
The description of the goods including the Tariff Classification is listed under column 1 of TCO 0981984. The Tariff classification is 8708.29.99 and is described as Parts and Accessories, On-Road Trucks Having A Gross Vehicle Weight Not Less Than 7.5 Tonnes, being ANY of the following….”. The TCO then lists 136 items including coverings (ah),covers(ai),frames(bf),harnesses(bk),mountings(by), platforms(ch), reinforcements(cp), roofs(ct), scoops(cv), sheets(cx), straps(dp), sunroofs(ds), supports(dt), understructure(ea). Column 2 of the TCO is headed Schedule 4 Item Number. This is a reference to Schedule 4 of the Tariff Act which provides concessional rates of duty under various item numbers. The relevant item number for “ANY” of the 136 items listed under column 1 of the TCO is item 50. Item 50 of Schedule 4 reduces the tariff from 5% to ‘free’.
The Applicant’s position is the Goods meet the description of cover or coverings: items listed as (ah)- Coverings or (ai)-Covers under TCO 0918948. Alternatively, the Applicant contends the components of Goods are included in the items listed under the word ‘ANY’: the tower section is a pillar (cf), the tarpaulin is a cover (ah), the control box is a console or control panel (af) or (ag), the support structure is a support or sills or stiffener (dt) (dd) or (dn) and the retracting mechanism is a frame (bf). The Applicant contends the tariff concession provided under item 50 Schedule 4 applies because the TCO encompasses component parts of a mechanical cover, and the essential character of the Goods remains a cover.
The Respondent’s position is the ‘components’ of the Goods are not accurately described by the TCO and therefore not eligible for the tariff concession provided under item 50 Schedule 4 of the Tariff Act. Further, as the Goods were imported as a kit, at the time of importation the kit, not the individual components, must meet the terms of the TCO to be entitled to entry into Australia duty free under Item 50 Schedule 4 the Tariff Act. It is the Respondent’s position that the term “cover or covering” is not so “broad that it would include a combination of parts providing a singular cohesive function of a covering system for on Road Trucks”. Rather, the Respondent argues the correct test is whether the goods as imported precisely meet the word description of the TCO. “In order for the goods as imported to be eligible for the benefit of the TCO the goods must correspond precisely with the word description in the TCO.” (emphasis added)
In respect of the Applicant’s alternative argument, the Respondent’s position is the only component of the Goods that could be considered a cover or covering is the tarpaulin. The Respondent submitted in relation to the components: the tower section is more than a pillar (cf), the head section containing the tarpaulin is an additional good attached to the tarpaulin so the tarpaulin is more than a cover (ai), concedes the control box, as the hub for the electrical components of the system, meets the definition of a console (af) but not a control panel(ag), and the retracting mechanism does not satisfy the meaning of the word frame, “defined in the Macquarie online Dictionary as “ the sustaining parts of a structure and joined together; framework; skeleton” because the retracting function “cannot work without the fittings and connection to the mechanical components”.
HISTORY OF THE PROCEEDINGS
The Applicant initially classified the Goods under tariff code 8479 which is headed Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter. The TCO keyed to that Tariff code was 84798990.
On 5 February 2019, a shipment of 28 packages of Hycover Scoop Sheeting Systems, (the Goods) with a declaration ID of AEAFC9MYL (T1 p.26) were valued on arrival into Sydney by Australian Customs. JD and RD Customs Brokers (the Customs Agent) had classified the Goods under Tariff Classification 8479 keyed to TCO 84798900. Consequently, duty of 5% was levied and paid on the Goods (T4.2 p 69, T4.4 p 73-75).
On the 22 September 2022, the Customs Agent lodged an amended full import declaration (FID) with the same declaration ID AEAFC9MYL. The FID contained the same details about the Goods, but the Tariff Classification had changed to 8708.29.99, and the TCO had been amended to correctly record the TCO keyed to the Tariff Classification as 0918948. In the event Customs agreed with the Goods reclassification, the Goods would be entitled to a Duty-Free status and the Applicant entitled to claim a refund of the duty paid on the Goods in February 2019.
On 15 November 2022, National Refund Intervention (Customs) sent an email to the Customs Agent headed “Import Declaration Response”. The email advised the Customs Agent the Goods identified as FID AEAFC9MYL had been selected for “RED Line processing” pursuant to s 71 DA of the Customs Act because of the reclassification request (T4.1 p67).
Section 71 DA of the Customs Act requires the delegated customs officer (Customs Officer) to obtain all relevant documents and information to enable the Customs Officer to verify the particulars of the goods shown on the import declaration. In other words, RED Line Inspection is a thorough review by Customs officials of all documentation associated with the shipment to enable the Customs Officer to objectively identify the goods and determine if the goods fall within the description of the TCO. The words “all documents” include the bill of lading, commercial documents of any type relating to the goods, and information relating to the goods that would assist the Customs Officer verify the particulars of the goods as shown in the import declaration invoices. (emphasis added)
On 23 November 2022, the Customs Agent supplied copies of all the relevant documents required for the refund application to be processed, including the manufacturer Transcover’s Brochure. The Brochure clearly shows images of the Goods in operation, the various component parts of the Goods and describes the Goods as “Pneumatically controlled tarping system for skip loads and hook lifts” (T4.3 p 70, T7.2 p84).

On 23 November 2022, the Customs Officer advised the Customs Agent “Australian Boarder Force (ABF) aims to process your refund within 30 calendar days upon receipt of all necessary information”. The email went on to state very clearly that Customs “considered the non-production of documents for red line refund applications, or failure to respond to a Notice to Produce Documents request to be a serious non- compliance issue which may result in increased levels of intervention”. (emphasis added).
The Respondent did not suggest or submit the Customs Agent on behalf of the Applicant failed to produce all relevant documents to allow the redline refund application to be processed.
On 4 January 2023, the Customs Officer requested clarification of the currency stated on the invoice and a “Full IDM showing how the goods meet the TCO claimed…..Specifically: Parts and Accessories, On Road Trucks having a Gross Vehicle weight of not less than 7.5 Tonnes: being Any of the following: (ai) covers”. Shortly after the above email was sent the Customs Officer sent another email stating “ .. I have provided ATA to amend the refund code to “R” as this is more appropriate”.
The Customs Regulations 2015 Reg 102 provides that for the purposes of paragraph 163(1)(b) of the Customs Regulations clause 1 of Schedule 6 prescribes circumstances in which a refund of duty may be made by Customs. Clause 1 Schedule 6 item 15 applies when “Duty has been paid on goods that were first entered for home consumption at a time when a Tariff Concession Order, made in respect of those goods, was in force or was taken to have come into force. This applies where the Tariff Concession Order is in place at the time duty is paid.” The ICS Refund Code listed beside item 15 is “R”. Presumably the email of 4 January 2024 was sent by the Customs Officer because the Customs Officer had formed a preliminary opinion that TCO 0918948 applied, triggering the application of Schedule 4 of the Tariff Act and a concessional rate of duty (T6 p.78-79).
On 11 January 2023, the Customs Agent relodged the refund application and emailed the Customs Officer to advise the refund application had been relodged “after ATA was given per your email of 4 January 2023. Please see attached item containing 5 attachments of IDM and evidence of monies price paid for goods. We trust this information will satisfy the refund query” (T7 p 80 – 91).
IDM is an anacronym for “Illustrative Descriptive Material”. Australian Customs Notice No 2010/03 provides an applicant applying for a TCO is required to provide “a clear” IDM which “may be in the form of brochures, technical drawings, photographs, samples, industry standards or schematics. The IDM must enable a full and accurate identification of the goods to be made. The application will be rejected if the IDM does not allow an accurate tariff classification to be made for the goods” (emphasis added).
Specifically, the Customs Agent supplied brochures containing photographs of the Goods being used on large Trucks, technical drawings that set out in detail the system specifications and how the components were designed to work together, details of the supplier in the UK and the purchaser in Australia, the currency used to purchase the goods, the price in pounds sterling paid for the goods (GBP 63,200) and the receipt of payment from the UK supplier (T 7).
On 7 February 2023, the Customs Agent received an email headed Status Advice Message, under the heading Status: the word Clear was typed. A customs clearance only occurs after customs authorities have inspected the shipment, all documentation has been verified and any applicable taxes and duties have been calculated and paid. Status Clear for Customs means the shipment has passed through the customs process., Presumably in the present circumstances, it indicated the Customs Officer had received all necessary information to process the refund application through redline processing and approved the refund. A handwritten note on the bottom of the email seems to confirm this as it records a code B30155 under which is written the word Refund $5570.62 (T4.2).
Between 8 February 2023 and December 2023, a further 22 refunds for the same Goods were approved and processed. On each occasion before the refund was processed Customs subjected the relevant FID to Red Line Processing. The relevant material provided to Customs in relation to the refund application FID AEJYGH9HW is contained in the Tribunal Documents marked T8. T8.1 at page 93 is notated Red, presumably code for red line processing. T8.2 and T8.3 are IDM’s that show the Goods in operation on various haulage trucks. The same additional information was required by the Customs Officer for the refund application FID AETJKPPL (T 9). T9.1 page 110 is also notated Red.
Further information was required for FID AEJYGH9HW, specifically the IDMs for the HC Swing and Mini Hycover Electric Sheeting System. The Tribunal Documents (T11 p 117 and T 12 p 119-128) contain the relevant information. Relevantly, T12.1 p 121 is an email that attaches the brochure for the Mini Hycover. That email states “they [Mini Hycover] are fitted onto skip trucks that would have a minimum GVM of 10.4 Tonnes. The usual installation is on a vehicle of 22.5 Tonne GVM”. In relation to the HC Swing the email states “we don't have a brochure for the swing away unit, I have attached the front page of the installation manual which shows the swing away unit. The swing away unit is fitted to front of trailers with a GVM of 25.5 Tonne it has the Hycover tarp system fitted to it. It is used to swing the Hycover tarp system out of the way so you can load and unload bins from the trailer” (T12.2 p 121, T12.2 p 124-125 T12.3 p. 126-128).
On 1 June 2023, the Customs Officer sent another email to the Customs Agent (T19 p 146) requesting further information about the Hycover Scoop Sheeting System in respect of refund FID AEJYGH9HW. The email made various observations about the Goods and requested further information. Part of the email is extracted below:
“the system ( referring to the Hycover Scoop Sheeting System) appears to be made up of several parts including the motor, housing, tower system, control box, brackets, tarp and remote controls. Please provide information on what exactly is included with the Hycover scoop sheeting system”.
“Is the system imported ready assembled and only needs to be attached to a truck or does it require assembling once imported. If the system is imported unassembled is it always imported with all the parts required to make up the system, in the form of a kit or set, or can it be imported without selected parts and why would this occur. E.g, it may not be imported with a motor or remote control for customers who [which] (sic) to use the system manually”.
“Do the tarpaulins always come with the goods.”
“The invoice provided lists the goods as:
Hycover Scoop Sheeting System
HCQuality Mesh Scoop “
what is the difference between these two goods/systems?”
“Can the goods be used by a truck having gross vehicle weight of less than 7.5 tonnes. If not, please explain what function of the goods means they can only be used with the truck over 7.5 tonnes.” ( emphasis added).
On 16 August 2023, the Customs Agent sent an email in reply “Re RED line FID. The email attached the IDM of the Hycover Scoop System, Mini Hycover sheeting system, Hycover swing and all the technical drawings and installation information for these items (T20 p 153 – 173).
The email reply sent by the Customs Agent on 16 August 2023 (T 20.4 p 183-184) sets out the answers to Customs Officers questions as follows:
“The system is made up of a Tower section, Head section, control box and radio. Attached is the installation manual showing parts.”
“The system arrives complete with Tower and Head sections assembled with all parts. We then need to fit and wire up. It's not imported excluding any of these sections or parts”
“Yes” (the tarpaulins always come with the goods)
“the HC Quality Mesh Scoop is the tarp which is already fitted to the head and part of the complete kit”
“No the head section is too wide to suit smaller trucks”
“Transcover do not have a full IDM for the HC Midi. It is the same as the Hycover scoop Sheeting system, just a shorter tower section”. (T20.4 p 183-184)
(emphasis added)
On 10 October 2023, the Customs Officer sent a further email requesting a full IDM for the ‘Undercover Sheeting System” FID AETJKPLP. In that email the same Customs Officer asked many of the same questions in the email of 1 June 2023 (T21 p186). On the 13 October 2023, the Customs Agent replied attaching the technical drawings and installation guide for the Undercover Sheeting System (T22.1 p 192 – 228, T22.3 p. 234 – 240, T22.6 p 252-267). The email from the Customs Agent also attached a copy of their response of 16 August 2023. In essences the email stated the Undercover Sheeting System always comes as a kit made up of various components, the system arrives complete with the tarpaulin, the tarpaulin is part of the head section and is already fitted to that system and the product is too large to fit on a truck with a gross vehicle weight of less than 7.5 Tonnes. (T22 p 188).
On 26 October 2023, the Customs Officer sent another email to the Customs Agent asking, “Could you please supply a brief narrative of the pneumatic mechanism of the swing arm and how it works in layman's terms such that a person without specific industry knowledge may understand for the HC swing -line 3”. (T23 p 268).
On the 2 November 2023, the Customs Officer sent a further email requesting more information about the Transcover Undercover Auto Sheeting System (T24 p 237). On 8 November 2023, the Customs Agent answered the further questions as follows (T 25 p 276):
“Have attached brochure that shows the use of this system. It is used to cover the load in a hook lift bin on a rigid truck. The unit firstly slides out so that it will clear the bin. The arms are then extended so the tarp head goes to the rear of the bin. The tarp is then tied off to the rear of the bin as the arms are closed up the tarp unwinds and covers the load in the bin. The arms then sit in the front stowed position.”
“The arms and frame are constructed from steel sections, the barrel that stores the tarp is aluminium, the tarp is mesh style covering material that has anti tear capabilities”.
“The hydraulic power can be from a separate electrical power unit operated from the truck's electrics or from the truck hydraulics. It can be controlled [be](sic) a radio remote system or manually from the operating valve.”
“Typical truck we would use this on is an 8 x4 hook lift truck with a 27.5 Tonne GVM” (T25 .1 p 282- 283 shows the Undercover sheeting system in operation)
On 23 November 2023, the Customs Agent sent an email to the Customs Officer in respect of FID AEJYGH9WH advising that “After much debate, the importer has accepted the HC Swing Kit does have a small capacity, but possible capacity of being used in a Trailer application as well as a Tuck application” and accepted the HC Swing Kit would be excluded from TCO/ 0918448. The Customs Agent requested the Customs Officer approve an “authority” to amend the FID, correct the entry and pay duty on the HC Swing Kit covering system. (T26 p. 284) (emphasis added).
On 4 December 2023, the same Customs Officer who had dealt with all the previous requests for a refund and requested and been supplied with all necessary information to satisfy the requirements imposed under Red Line Processing before each refund could be processed sent an email to the Customs Agent stating:
“This FID (FID AEJYGH9HW) has been rejected as the goods line 2 and 4 (HyCover Scoop Sheeting system, HC Swing, Mini Hycover electric Sheeting system) do not meet the claimed TCO.
FID AEAFC9MYL which was previously approved for the same goods will need to be amended. Please advise when this amendment has been made”. (emphasis added) (T27 p 288, T1 p23, T1 p28- 52)
Between 7 February and 4 December 2023, the Applicant’s evidence was the total duty refunded after Red Line Processing for each FID exceeded $100,000.
On 5 December 2023, the Customs Agent emailed the Customs Officer requesting an explanation and reasons for the Customs Officer rejecting the eligibility of the Goods for classification under TCO 0918948 given the same Customs Officer had previously approved refunds after redline processing for “exactly the same goods”. (T1- p14, T30 p304)
On 13 December 2023, the Customs Officer replied (T1 pp. 13-14). The email and the emails in reply are extracted in the following paragraphs:
“Upon lodgement of further refunds, additional information has been obtained. We still consider that tariff classification of the goods is correct at 8708.
However, TC 00918948 does not apply, as the claimed provisions (ah) coverings, and (ai) covers, do not accurately describe the other components of the goods, namely, the tower section, head section, control box, radio and other parts that comprise the supporting structure and remote control retracting mechanism for the tarpaulin. These are additional goods, not additional functions, none of these being covers or covering's, which take the complete goods outside the scope of the TCO wording provisions (ah) and (ai). (T 29 p 297). (emphasis added)
On 15 December 2023, the Customs Agent replied (T1. 13) making it very clear all relevant information had been provided to the Customs Officer when the Goods were flagged for Red Line Processing.
“(a). The literature (IDM), information, explanation and functionality of the TRANSCOVER system has not changed since your approval of FID Refund AEAFC9MYL back in February 2023, and we see no reason why you should be rejecting eligibility now on the same information.
(b) The goods, in our view, still comply with the requirements of TCO 0918948
(c) Never-the-less, on your direction, I will attend to the amendment of AEAFC9MYL and payment of the duties so refunded, but also on the instruction of the importer, this repayment will also be done so “UNDER PROTEST” and with a view for its review via the AAT
(d)As a consequence of the Importers direction for “payment under protest” and an intending AAT review, may I ask the amending entry payment against FID refund AEAFC9MYL be established as the “test case” and that any/ all other FID's for this product be held (no refund or post action) pending the review/ decision of the AAT against FID refund AEAFC9MYL
(e) Considering that it was all on the basis of your agreed refund against FID AEAFC9MYL back in February 2023, and the assurances that this provided for other shipments moving forward, your agreement to (d) above would be appreciated” (T-30 p 303)
On 20 December 2023, the Customs Officer responded (T1p.12) to each of the paragraphs in the Custom Agent’s email extracted at paragraph [43] above. Relevantly, with respect to each paragraph:
(a) “Unfortunately, the assessing officers did not realise the goods included additional items other than the cover for the initial assessment. This was only picked up in the subsequent assessment.”
(b)“as detailed below the ABF position is that TC 00918 948 does not apply, as the claimed provisions (ah) covering's and (ai) covers, do not accurately describe the other components of the goods, namely tower section, head section, control box, radio and other parts that comprise the supporting structure and remote control retracting mechanism for the tarpaulin. These are additional goods, not additional functions, none of these being covering's or covers, which take the complete goods outside the scope of the TCO wording provisions (ah) and (ai). (emphasis added)
(d)“We are happy to accept AAT decision for exact goods, however, please be aware the legislative time restrictions for refunds will still apply. So if you have any possible refunds looking to run over the legislative permissible period we recommend that you lodge them ‘amber’ stating awaiting AAT decision.
(e)“Noted, we have also taken the circumstances into consideration and will not be applying any penalties on this occasion”. (T 1p,12, T-31 p 310).
On 22 December 2023, the Customs Agent filed an application with the Tribunal applying for a review of the decision of the Respondent in relation to “the Goods entered via FID entry AEAFC9MYL Hycover Scoop Sheeting Systems”. Specifically, the Tribunal was asked to determine whether the Goods complied with the requirements of TCO 0918948.
On 6 November 2024, the matter was listed for a hearing by video. On the afternoon of 4 November 2024, the parties contacted the Tribunal and requested “the matter be heard ‘on the papers’, being the T Documents and the Facts and Contentions filed by the applicant and respondent together with the further contentions of the applicant and respondent set out below, rather than the parties appearing for a formal hearing this coming Wednesday”. The parties in the email explained this would be both “expedient” and “save time”.
On 7 November 2024, the Tribunal held a telephone directions hearing. During that directions hearing the Tribunal member asked the parties to clarify certain matters raised by the parties in their Statements of Facts Issues and Contentions, and the further ‘submissions’ set out in the email of 4 November 2024. At the conclusion of the directions hearing, the Tribunal Member requested the parties confirm they still wished to have the application determined on the papers. The parties advised the Tribunal Member they had nothing further to add to the material already provided to the Tribunal and pressed for the proceedings to be determined on the papers. After considering the documents filed by the parties and hearing from the parties during the telephone directions hearing, the Tribunal Member determined the matter could be dealt with on the papers.
On 8 November 2024, the Tribunal Member made the following order “At the request of the parties, and pursuant to the power vested in the Tribunal under section 106 (2) of the Administrative Review Tribunal Act 2024 (ART Act), the Tribunal Member will determine the matter on the papers.” The Tribunal directed the Applicant “file with the Tribunal and provide to the Respondent a signed ‘Consent to the Tribunal Deciding the Review Without a Hearing’ compliant with part 5 of the Tribunal’s Common Procedure Practise Direction 2024.
The Tribunal member also made directions that the parties file with the Tribunal any section 23 ART Act documents the parties specifically wanted the Tribunal to take into consideration together with any further written submissions the parties wished to rely upon or confirm to the Tribunal the parties had nothing further to file in the proceedings.
The Tribunal directed the Respondent file with the Tribunal “any further statutory provisions, or guidance provided under the General Rules for the Interpretation of the Harmonised System provided for by the International Convention on the Harmonised Commodity Description and Coding System (Interpretation Rules) or further authorities”.
It has often been said “Hindsight is a wonderful thing”. Closer consideration of the section 23 documents revealed many of the terms used in the documents were Australian Border Force, Shipping or Importer Codes. The Applicant’s submissions were cryptic at best, the submissions of both parties as well as the Tribunal Documents were heavily reliant on undefined trade and customs technical terms. The dates refunds were paid, which FID, if any, other than FID AEAFC9MYL the refunds related to and the amount of each refund or an exact amount of the total refund was not provided by either party. Importantly, the emails of 20 and 22 December 2023 referred to at [42] and [43] contextualise the request for a hearing on the papers, the matter was intended as a test case. It follows the Tribunal makes the following observation and findings having considered the material before it carefully and in the knowledge the Tribunal’s decision is more likely than not to be appealed.
THE LEGISLATIVE SCHEME

There is nothing new or novel in what is set out below in relation to the statutory provisions that impose Customs Duty on goods imported into Australia. Much of what is set out below is well settled, but as this is a test case it bears repeating.
The Customs Act Part XVA Division 1 is the preliminary or interpretation division for TCO’s. For present purposes the following sections are relevant:
s. 269C “Interpretation - Core Criteria
For the purposes of this Part, a TCO application 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.” (emphasis added)
Section 269D Interpretation – goods produced in Australia.
(1) For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if the goods are wholly or partly manufactured in Australia.
(2) …
(3) Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process;
(c ) simple assembly operations
Division 2 deals with making an application for a TCO. Section 269 F provides as follows:
(2) An application must:
(a) be in writing; and
(b) be in approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) Without limiting the generality of paragraph(2)(c),a TCO application must contain:
(a) a full description of the goods to which the application relates;
(b) a statement of the tariff classification that, in the opinion of the applicant, applies to the goods; and
(c )..
(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. (emphasis added)
Section 269FA sets out the applicant’s obligations in relation to the TCO application. The section is in the following terms:
“It is the responsibility of an applicant for a TCO to establish, to the satisfaction of the Controller- General of Customs, that, on the basis of:
all information that the applicant has, or can reasonably be expected to have; and
all inquiries that the applicant has made, or can reasonably be expected to make;
there are reasonable grounds for asserting that the application meets the core criteria.”
(emphasis added)
Section 269 SJ is in the following terms:
269 SJ TCOs not to apply to goods described by reference to their end use or certain goods
(1)The controller- general of customs must not make a TCO in respect of goods:
(aa) described in terms other than generic terms; and
(a) described in terms of their intended end use;
(b)…
(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”.
(emphasis added)
It was common ground the Goods were manufactured by an English company in the United Kingdom. The Goods were not “goods produced in Australia” nor were “substitutable goods in respect of goods the subject of a TCO” produced in Australia. “Substitutable goods” are defined in s 269B Division 1 – Part XVA Customs Act. During the directions hearing on 7 November 2024 the parties informed the Tribunal that to the best of their knowledge, at the date of the hearing, substitutable goods were not produced in Australia. In short, the core criteria for the purposes of the Customs Act were satisfied at the time the directions hearing was held.
Section 6 of the Tariff Act provides as follows:
“A reference in this Act to a tariff classification under which the goods are classified is a reference to a heading or subheading:
(a)in whose third column a rate of duty is set out; and
(b)under which the goods are classified.”
Section 3 of the Tariff Act defines heading to mean a heading in Schedule 3 of the Tariff Act.
Section 7 of the Tariff Act sets out the “Interpretation Rules” for classifying goods in Schedule 3 of that Act. The Interpretation rules are defined as the General rules for Interpretation of Harmonized System provided for by the International Convention on the Harmonised System. Section 7 is in the following terms:
(1) The interpretation rules must be used for working out the tariff classification under which the goods are classified. (emphasis added)
(2) …
(3)
Schedule 2 of the Tariff Act sets out the General Rules for the Interpretation of the HS. Those rules must be used in working out the tariff classification under which the goods are classified for the purposes of Schedule 3 of the Act. The chapeau of Schedule 2 states “Classification of goods in schedule 3 shall be governed by the following principle:
“(2)(a) Any reference in a heading to an article shall be taken to include reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (emphasis added).
“(3) When by application of Rule (2) (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows:
(a)The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of an item in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (emphasis added)
(b)Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (emphasis added)
(c.) When goods cannot be classified by reference to 3(a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
(d)Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.”
(emphasis added)
Section 16 of the Tariff Act deals with the calculation of duty subject, for present purposes, to the provisions of s 18. Section 18 of the Tariff Act deals with the calculation of concessional duty. Section 18(1)(a) provides that if an item in Schedule 4 prima facie applies to goods, that item only applies to those goods if the duty payable in respect of those goods under that item is less than the duty that apart from this section would be payable under the Tariff Classification in Schedule 3 that applies to the goods. Schedule 3 under the Tariff Classification 8708.29.99 imposes duty at 5%.
Section 18(2) sets out the method of working out the amount of duty payable in respect of goods under an item in Schedule 4. For present purposes, as the goods are UK originating goods s.18 (2)(u)(i) or (ii) apply to determine the rate of duty. Item 50 of Schedule 4 reduces the tariff from 5% to ‘free” if the goods are goods that a TCO declares are goods to which item 50 applies. The Third column of Item 50 does not set out a rate of duty for goods that are UK originating so s 18(2)(u)(ii) provides the goods are duty free.
APPLICANT’S EVIDENCE AND SUBMISSIONS
The Applicant’s evidence is the Goods are manufactured and supplied by a UK company, Transcover Systems Limited (Transcover). Transcover’s brochure states “Transcover are the leading UK manufacturer of commercial vehicle covering systems. We design and build our systems and tarps specifically for various markets around the world …. Our range of systems are suitable for all sectors of our transport industry including agriculture….. Transcover are now the major supplier to the majority of haulage contractors and OEMs in the Waste, Construction and Agri Industries business.” (T4.3 p7).
The Goods ordered by the Applicant were invoiced by Transcover as a single item, the Goods were ordered and supplied in a CKD kit, that is, all the components of the Goods were packed together and shipped as single complete kits. The Goods were imported by the Applicant for retail sale to haulage contractors, and original equipment manufacturers (OEMs) in the truck assembly business, that operate or produce trucks to operate in the waste, construction, and agri-businesses.
The Applicant’s evidence is each component of the CKD Kit; the tower, the head section containing the tarpaulin, the control box, the support structure, and retracting mechanism fitted together to provide a singular, cohesive function. “It is imperative to recognise that these components, while diverse, collectively fulfil the overarching purpose of functioning as a covering systems for on road trucks”: Applicant’s email submissions dated 31 October 2024.
The Applicant’s submissions emphasises that the individual components have absolutely no separate or independent functions. Rather, the components including the component that contains the tarpaulin “are designed purely to assist in the overall operation and the singular function of the cover/ covering requirement of the equipment.”
The invoices provided to the Respondent by the Applicant show that the components have no separate commercial value and are not sold as individual parts separate from the kit in which they are contained.
The Applicant’s submitted a tarpaulin without a mechanical function would be classified under Tariff Classification 6306 and would never invoke a TCO keyed to Tariff Classification 8708 because Tariff Classification 8708 pertains to goods of a mechanical nature. The Applicant submitted the converse is also true, that is a tarpaulin that includes components associated with a motor vehicle and exhibits mechanical characteristics could never be classified under Tariff Classification 6306 and keyed to a TCO under that Tariff Classification.
In answer to the question put to the Applicant during the directions hearing whether the “Wharfside test was met because Customs knew how the Goods worked? The Applicant’s evidence was: “ We assumed they knew what they were looking at because they requested literature of IDM with the original refund application- so we were quite satisfied they knew what they were looking at and they knew what they were classifying and they knew what they were applying”. (Trans Directions hearing 7 November 2025)
In short, the Applicant’s argument is that without a mechanical function the goods could never fall within Tariff Classification 8708.2. The applicant’s submission stated:
“if the goods (kit) were not mechanical in nature and just a plain cover made of base material, ( i.e.plastic, rubber or canvas ect),Classification to 8708 would not be possible”.
“Therefore it should be recognised that in determining the criteria of TCO/ 0918948, the original delegate of the Controller of Customs was aware, that wording of covers/coverings (within the TCO), would be of a mechanical nature and thus unnecessary to specify any exclusion or inclusion of componentry constituting the basic definition of a cover/covering.”
“On this basis, TCO/ 0918948 eligibility (for covers/coverings) was to be determined simply on the English definition of the two chosen words”
(a)“Cover: as something that is placed over or about another thing”,
(b)“Covering: as something that covers or conceals”.
“neither definition stipulates the inclusion or exclusion of any goods enabling the required outcome or end function”.
“The end function of the machine(kit), regardless of the goods used to achieve this function is the only consideration”.
Finally, the Applicant distinguished the decision in Brand Developers Aust Pty Ltd and Chief Executive Officer of Customs [2015] AATA 215 (Brand Developers), a case that concerned a hand operated food processors on the ground that the relevant TCO imposed eligibility requirements. The decision in Brand Developers is addressed in detail below.
RESPONDENT’S EVIDENCE AND SUBMISSIONS
The Respondent submitted: the legislative scheme requires “the subject goods as imported to precisely fit the criteria or the description of the TCO”. (emphasis added)
In support of the Respondent’s position the Respondent relied on the decision in Brand Developers, the obiter dicta statements made by Justice Yates in Becker Vale Pty Ltd v CEO of Customs [2015] FCA 525 at [57], [62]-[64] (Becker Vale) and a number of other decisions of the Tribunal: Australian Plastic Products Pty Ltd and CEO of Customs [1998] AATA 433 at [38], Akai Pty Ltd and Collector of Customs AAT (8075, 2 July 1992), Zoratto Enterprises Pty Ltd and Collector of Customs AAT (007321, 23 September 1991) and Toro Australia Group Sales Pty Ltd and Chief Executive Officer of Customs [2014] AATA 187 ( Toro) .
The Respondent submitted the cases cited by the Respondent “have clearly enunciated the principal that to be able to take advantage of a TCO, the products must precisely meet the criteria” of the TCO (Respondent’s Statement of Facts Issues and Contentions (RSFIC) at [32],[33], [34], [35]). (emphasis added)
The Respondent invited the Tribunal to interpret the Customs Act in a way that promotes the “express or implied objects behind Part XVA of the Customs Act” (RSFIC [39]). In that regard the Respondent stated, “The object behind Part XVA of the Customs Act and the scheme for the TCO’s has been consistently recognised as protecting Australian made goods from competition from imported goods” (RSFIC [40]). The Respondent went on to submit that “If the Tribunal finds that the subject goods do not precisely meet the wording of the TCO, the Tribunal should find that the subject goods are not eligible for the benefit of the TCO.” (emphasis added)
The Respondent submitted TCO 0918948 does not “accurately describe the other components of the goods, namely the tower section, head section, control box, radio and other parts that comprise the supporting structure and remote control retracting mechanism for the tarpaulin (additional components)” (RSFIC [44]). The Respondent contended the “additional components constitute additional goods themselves, none of which fall within the scope of TCO 0918948.” (RSFIC [45]. (emphasis added)
The Respondent rejected the Applicant’s description of the goods as being a kit made up of various sections that all have a single function, that is, to be a cover or covering. The Respondent submitted that “when properly understood the additional parts, for example the “tower”, “motor” or “remote control” enabled the cover (the tarpaulin) to be put in place by being moved into place and subsequently removed” .These parts alter the essential nature of the Goods and the Goods are no longer a ‘cover’ or ‘covering’” (RSFIC [50]). (emphasis added)
While the Respondent conceded the tarpaulin component is a cover or covering the Respondent contended the tarpaulin was only one component that made up the goods and the “end use’ test propounded by the applicant does not satisfy the practical wharfside task of an informed observer identifying goods based on looking at the goods and relying on the characteristics of the goods as presented, not by reference to the intentions of the importer or supplier” (RSFIC [57]).
The Respondent’s case is essentially “the subject goods as imported are not “precisely described” by the wording of the TCO” (RSFIC [57]).
The Respondents position is consistent with Australian Border Force’s publication headed “Interpretation of wording in Tariff Concessions Orders”. That publication provides the following advice to importers:
Following recent Federal Court / Administrative Appeals Tribunal decisions this notice reiterates how the Department of Home Affairs (the Department) interprets Tariff Concession Order (TCO) descriptions. The decisions in question are commonly known as ‘Becker Vale’ 'Toro' and 'Brand Developers'.
These decisions provide some guidance in relation to how a TCO description should be interpreted and applied. These decisions are consistent with the policy intent of the Tariff Concession System (TCS), which is a government programme that supports Australian producers.
A key conclusion in the Toro decision was that …'the goods must precisely fit the description set out in the TCO.' (para 50). The Brand Developers decision concluded that packaging and instructional booklets were not part of the good for the purpose of determining whether a good was described by the TCO. The Brand Developers decision did, however, confirm that the presence of other additional components or goods that were not described by the TCO wording rendered the use of that TCO inapplicable. The Federal Court in the Becker Vale decision approved the approach of the AAT decisions of Toro and Brand Developers that a TCO must precisely describe the goods.
It is not open to the Department to interpret the words of a TCO other than by applying the same principles of statutory construction that are used to interpret all other legislation. In this context, the Department cannot expand the meaning of the TCO by assuming there are implied inclusions that cover additional goods not mentioned in the TCO.
These principles do not mean that each and every component part, function or feature of a good must be listed in a TCO. It simply requires that any component parts, functions and features are encompassed by the description of the complete good as described by the particular TCO. If there is a component or item which is not encompassed by a good of the description in the TCO, then it should be expressly mentioned in the TCO in order for the goods to be covered.
(emphasis added)
INTERPRETING AND APPLYING A TCO
Statutory Construction
As stated above a TCO is subordinated legislation, made under the Customs Act. A TCO is a legislative instrument for the purposes of the Legislation Act2003 (Legislation Act). Under the Legislation Act a TCO must be registered on the Federal Registrar of Legislation. A TCO becomes law after it is signed by a delegate of the Chief Executive Officer and published in Tarif Concession Gazette.
The general principles relating to interpreting Acts of Parliament are equally applicable to the interpretation of subordinated legislation: Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389, 398 (the court); ENT19 v Minister for Home Affairs [2023] HCA 18, [86] (Gordon, Edelman, Steward and Gleeson JJ); Disorganised Development Pty Ltd v South Australia [2023] HCA 22, [14] (Keifel CJ, Gageler, Gleeson, and Jagot JJ; Steward J agreeing). Accordingly, the intention of Customs Act is the primary guide to the meaning of the TCO.
The TCO needs to be construed in a manner consistent with the purpose of the Customs Act. Section 15 AA the Acts interpretation Act 1901(Cth) states:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object”
Obviously, the obligation imposed on the Tribunal is to interpret the provisions of the Customs Act, the Tariff Act and TCO 0918948 in a manner that best promotes the express or implied objects of those Acts, and the subordinated legislation, avoids internal consistency, avoids absurdity or inconvenience, and complies with Australia’s international obligations under the WTO Agreement.

When giving the Second Reading Speech on the Customs Legislation (Tariff Concessions an Anti -Dumping) Amendment Bill 1992 the Hon Mr Beddal, the then Minister for Small Business Construction and Customs said “…The objective of the system is to ensure that industry is not taxed by the tariff where it is serving no protective function” ( Hansard, House of Representatives, 7 May 1992 at 2665) (emphasis added).
It is impermissible to attach to a statutory provision a meaning which the words of the provision cannot reasonably bear: Momcilovic v the Queen (2011) 245 CLR 1 per French CJ at [39].
The High Court has stated on numerous occasions “To adopt a meaning which is not reasonably open on the natural and ordinary meaning of the words used in the context in which they appear is not interpretation, which is a judicial function, but amendment, which is a legislative function”: Marshall v Watson (1972) 123 CLR 640, at 649; Moncialovic v the Queen at [39]. When considering provisions of the Customs Act in Teece v Collector of Customs (2014) 250 CLR 664 the High Court stated at [23] “objective discernment of statutory purpose is integral to contextual construction.” The statutory purpose of the TCO regime is to provide a concession to the impost of Customs Duty when a Tariff is serving no protective function.
It is well settled a word may only be substituted for another word where without the substitution the provision is unintelligible, absurd, totally unreasonable, unworkable, or totally irreconcilable to the plain intentions as shown by the rest of the statute;:Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505, 508-509 per Lord Reid; Cooper Brookes (Wollongong) Pty Ltdv Commissioner of Taxation (1981) 147 CLR 297, 304-306.
In Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54 per Kiefel CJ, Keane, Nettle and Edelman JJ at [52], the High Court reiterated “the court’s ability to construe the statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended to have”.
The High Court has continually cited with approval Lord Diplock’s conditions for implying words into a statute: Taylor v Oweners -Strata Plan No 11564 (2014) 253 CLR 531. In Jones v Wrotham Park Settled Estates [1980] AC 74, at 105-106 Lord Diplock identified three conditions that justified reading words into a statute:
“First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draughtsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty that where the additional words that would have been inserted by the draughtsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts”. (emphasis added)
The High Court continues to cite Thompson v Goold &Co [1910] AC 409 at 420 per Lord Mesey “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is the wrong thing to do”. : Western Australia v Commonwealth (1975) 134 CLR 201 at 251, Parramore v Duggan (1995) 183 CLR 633, 644 (Toohey J; Brennan, Dean, Dawson and McHugh JJ agreeing); Minogue v Victoria (2018) 264 CLR 242, [14]( Kiefel CJ, Bell, Keane, Nettle, and Edelman JJ)
Schedule 3 of the Tariff Act “implements the World Trade Organisation Agreements on Implementation of Article Vll of the General Agreement on Tariffs and Trade 1994”. Australia’s Schedule of Tariffs is part of the GATT 1994. Consequently, interpretation of the Tariff Act, the Customs Act and the subordinated legislation made under the Customs Act, that is, a Tariff Concession Order “should be interpreted, so far as possible, to be consistent with international law": TheKing v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 per Kiefel CJ, Gageler, Gordon, Steward, Gleeson an Jagot JJ [27]. The Court reiterated at [23]
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' ... 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed." (emphasis added)
The words used in the relevant provisions of the Customs Act are:
s.269F (2) (c) “contain such information of the form requires :…”,
Section 2690F (3) “ without limiting the generality of paragraph (2)(c) a TCO must contain :
(a) a full description of the goods to which the application relates’ .
The Customs Act does not use the word “precisely”. To read into the phrase “a full description of the goods” the word “precisely” not only “departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear” but is not consistent with the “purpose of all the provisions of the statute” and reads into the Customs Act words “which are not there”. As there is no clear necessity to read words into the Customs Act “it is the wrong thing to do”.
The same is true of the Tariff Act. The Courts have settled a number of principals relevant to the resolution of Tariff Classifications (Comptroller- General of Customs v Pharm -A- Care Laboratories Pty Ltd [2018] FCAFC 237 per Burley, Steward and ThawleyJJ)
“First, it is now settled that the proper construction of ordinary words is a question of law: May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 297 at [183]-193]
Secondly, subject to statutory context, function or purpose, courts should be cautious of subjecting words in legislation that have an ordinary everyday meaning to intensive analysis. Decision-makers should use “their local knowledge, experience of the world and common sense, to give a sensible interpretation” to the words used; an appellate court “required to review such decisions should endorse those that have been reached and confirmed in this way”: Lansell House Pty Ltd v Federal Commissioner of Taxation [2010] FCA 329
Thirdly, the classification rules in the Tariff recognised that a particular good or item may inherently fall under more than one classification, but the rules are designed to ensure, so far as possible, that this does not happen. … Where goods exhibit more than one character it may be necessary to ascertain their essential character: Air International at [20] per Hill J. The essential character of an item or good is a question of fact.
Fourthly, in characterising the goods, one must consider them objectively in the condition in which they were imported. That includes a consideration of their general presentation, any labelling, and an analysis of their composition: Chinese Food and Wine Suppliers Pty Ltd v Collector of Customs (Vic) (1987) 72 ALR 591.
Finally, the Customs Classification regime, and the Interpretation rules in Sch 2, have their origin in the Convention. It follows that the Tariff should receive an Interpretation which is consistent with the Convention, and that, consistently with Treaty Interpretation more generally, it’s words should be construed in good faith and in accordance with their ordinary meaning, in light of the object and purpose of the Convention: Air International at (25) per Hill J. (emphasis added)
The ordinary rules of statutory interpretation apply when construing a TCO. As the High Court has stated on numerous occasions “the province of statutory construction is the attribution of meaning to the enacted statutory text, not the remediation of perceived legislative oversight” H Lundbeck A/S v Sandoz Pty Ltd (2022) 276 CLR 170, [63] (Keifel CJ, Gageler, Steward and Gleeson JJ). The intention or meaning of the enacted statutory text (Customs Act) and the subordinated legislation made under that Act (TCO) is to provide an exemption from Australian Customs Duy for goods not manufactured in Australia. It is not as stated in the ABF publication “a government programme that supports Australian producers”.
The requirement that the goods are “precisely described by the wording of the TCO” or “the goods must meet those described in the relevant TCO precisely” is a condition imposed by by the Respondent and indeed Australian Border Force to interpret the wording of TCOs narrowly. However, the enacted statutory texts; the Customs Act, the Tariff Act, the TCOs made under the Customs Act, as well as the HS Tariff Classifications and the Explanatory Notes to the relevant chapter of the HS do not use the word precisely or the adjective precise. Accordingly, it is not appropriate to attribute a meaning of “precisely” or “precise” to the actual words used in the Customs Act.
The obligations imposed under the Customs Act is for the importer to provide a “full description of the goods to which the application relates”. A full description of the goods has been held to be “an objective description and must be such as to enable those who import, or those who supervise the importation, to identify the goods by an informed inspection.”: Re SMS Autoparts Pty Ltd and Chief Executive Officer of Customs [1996] AATA 158 at [20]. A full description of the goods requires a detailed account, but those words do not require a perfectly accurate description that is identical in every single detail to the actual goods. The words in the statutory context in which they appear suggest a “full description” is a clear representation but not necessarily a perfect representation of the goods in question.
The word ‘precisely’ on the other hand means with great accuracy and specific detail, leaving no room for ambiguity or interpretation. The Shorter Oxford Dictionary defines precisely as “accurately and exactly”. The adverb precisely describes something done with complete accuracy or perfection. The adjective precise is defined as: Exact, neither more or less than, perfect, complete. When the word precisely is used in legislation the provision is intended to be defined clearly and narrowly.
The words used in the subordinated legislation TCO 0918948 are “ANY of the Following” after which 136 items are listed. The word “any” is capitalised. When the phrase “any of the following” is used in legislation it signifies a non-exhaustive list where any one of the specified items is sufficient, or a combination of any or even all the items listed is sufficient to meet the requirements or conditions prescribed by the legislation. In Words and Phrases Judicially Defined under the word heading “Any” at p 172 the following entries appear:
‘“Any” is a word of very wide meaning, and prima facie the use of it excludes limitation’ Clarke-Jervoise v Scutt [1920] 1 Ch 382 at 387-388, per Eve J
Australia ‘“Any” is a word which ordinarily excludes limitation or qualification, and which should be given as wide a construction as possible. “Any goods” therefore includes all goods except where this wide construction is limited by the subject matter and the context of a particular statute” Victorian Chamber of Manufacturers v Commonwealth (1943) 335 at 346, per Williams J..\
It is unlikely the legislature intended the phrase “Any of the following” to be read in a precise or narrow fashion. In Re Air International Pty Ltd and Chief Executive Officer of Customs [2001] FCA 1386, Weinberg J when considering the phrase “goods of a kind” held:
“I am also of the view that the AAT was correct in rejecting the applicant’s contention that the expression “of a kind” in the relevant phrase should be construed in a manner directed towards the use for which the particular goods were designed or manufactured, or the purpose for which it was intended they should be put. In both Hygienic Lily and Eurovox, judges of this Court rejected just such a contention. Gummow J in Hygenic Lily and Merkel J in Eurovox both held that the phrase “goods of a kind” was directed to the “nature, quality and adaptation of goods in the class or genus in question”. In Eurovox, Merkel J observed that if the legislature had intended to limit the application of the relevant phrase by the insertion of words such as “ordinarily”, “exclusively”, “principally” or “primarily”, it could be expected to have done so”. (emphasis added)
Generally, provisions conferring relief from duty or tax are construed beneficially in favour of the taxpayer rather than restrictively in order to promote the purpose of the concessions conferred by the provisions of the relevant act or regulation: c.f. Collector of Customs v Cliff Robe River Iron Associates [1985] FCA 96, Commissioner of State Revenue (Vic) v Viewbank Properties Pty Ltd (2004) 55 ATR 501; [2004] VSC 127, [38] (per Nettle J).
It follows the language used in a TCO “should be construed so as to give the most complete remedy which is consistent “with the actual language employed” and to which its words “are fairly open””: Khoury v Government Insurance Office of New South Wales [1984] HCA 55 per Mason, Brennan, Dean and Dawson JJ.
Given the generalised language used in TCO 0918948 to describe the necessary connection between the heading and the list of items that fall within that heading, a narrow approach to the wording of the TCO is not appropriate. The TCO does not use language that might confine the words “any of the following”, nor has it used words that might qualify the word “any”. To satisfy the TCO it is sufficient if the goods in question have some connection with the heading. In HP Mercantile Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 216 Hill J when considering the construction of “wide words signifying some connection between two subject matters” stated that construction “… will depend upon the context in which the words are found”. Here the context is a concession from the impost of Customs Duty when the goods in question are not manufactured in Australia.
In Mondelez Australia Pty Ltd v Automative, Foods, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 Edelman J stated at [95] “the duty of courts in the exercise of statutory interpretation is to give effect to the meaning of statutory words as intended by Parliament. In common with how all speech acts are understood, the meaning is that which a reasonable person would understand to have been intended by the words used in their context. One presumption, or inference based on common experience of legislative acts, is that when Parliament uses words with a common or ordinary meaning then the words are intended to bear that ordinary meaning”.
A reasonable person would understand the words “a full description of the goods” to mean enough information to identify the goods in question not a perfect account of every detail of the goods.
In Collector of Customs (QLD) v Times Consultants Pty Ltd [1986] FCA 413 (Times Consultants 1986), Davies J stated:
[10] “In the classification of goods for the purpose of tariff, one is concerned with the essential character of goods, often with their composition and sometimes with their function. The tariff uses expressions which are not solely Australian expressions. Much of the Australian tariff is based upon the Brussels Nomenclature. Equivalent terms are found in many different languages throughout the world. The tariff is intended to be understood and acted upon both by persons overseas and in Australia, by exporters and importers. In these circumstances, one ought not, in classifying goods for the purposes of the tariff, to look for subtleties”. (emphasis added)
It follows from the above authorities that the Respondent’s narrowing of qualifications to fall within TCO 0918948 are not supported by the language of the TCO and are not consistent with the need to construe that language generally so it can be understood by “persons overseas and in Australia” as well as beneficially, that is, to provide a concession from Australian Customs Duty, and to encourage international trade in products Australia does not produce.
The Relevant Authorities considered
It is well established that the first task in tariff classification is to identify the goods in their state or condition as imported, and the second stage is to determine which tariff classification is the most appropriate: Re Gissing and Collector of Customs (1977) 1 ALD 144 ( Re Gissing); Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 (Pharm-A- Care).
The analysis provided by the Tribunal; Brennan J (President; as his Honour Sir Gerald Brennan AC KBE GBS QC then was); Messers Skermer and Stock (members) in Re Gissing and Collector of Customs ( 1977) 1 ALD 144 ( Re Gissing) remains relevant to the matter before the Tribunal, notwithstanding the legislation has been replaced by the Tariff Act and times have changed since Re Gissing was decided. Today the same garments may no longer be classified as men’s or boys’ garments purely because of the design. Nevertheless, the Tribunal’s reasons remain apposite to the decision in these proceedings.
The goods in Re Gissing where shorts and a shirt that were imported on a display hanger, covered in clear plastic. Importantly for present purposes the Tribunal observed at 146 – 147:
“Each has a separate function to perform in covering the upper and lower parts respectively of an infant's torso. Each is capable of being used apart from the other. Neither article transfers its identity to the other. These are factors which tend to identify the shorts and shirt as a separate entity.
However, there are other factors which tend to identify the shorts and shirt as a single entity. They were imported on a display hanger covered in clear plastic, as a set. The shorts and shirt are complementary (though not matching) garments suitable for use as a set. They were not imported for sale as separate articles, and they are sold for a small price as a single set. It is of importance that neither part is by itself an article of commerce. Although none of these factors is conclusive in itself, together they show that the separate identity of the shirt and shorts is submerged by the identity of them in combination.
The relevant entity is the set of clothing” (emphasis added)
The Tribunal went on to find at 147- 148:
“the relevant entity is the set, not the parts of the set”.
“ Design not use is the criterion, if the design manifests an intention that the goods should be used exclusively by men or by boys, then the goods will be classified as men's or boys garments. That classification will not be affected by evidence that some women or girls do or will use the garments.” ”(emphasis added)
The question of classification as between the two items which apply to outer garments…. thus depends upon the design of the garments and the intention as to the use of the garments manifested by that design.” (emphasis added).
The same is true in the present proceedings, it is the design of the Goods and the intention of the use of the Goods manifested by that design that is relevant, not the component parts.

In Re Tridon Pty Ltd and Collector of Customs [1982] ATO 119, the Tribunal identified eight principles relevant to the process of tariff classification:
“(i) Identification must be objective, having regard to the characteristics which the goods, on informed inspection, present ...;
(ii) The identification of goods cannot be controlled by the descriptions of goods adopted in the nomenclature of the Tariff ...;
(iii) Nevertheless, in identifying goods it is necessary to be aware of the structure of the nomenclature, the basis on which goods are classified and the characteristics of goods which may be relevant to the frequently complex task of classification ...;
(iv) In the identification of goods, knowledge of how those who trade in the goods describe them will usually be relevant, but not necessarily conclusive ...;
(v) All the descriptive terms, both specific and generic, by which the goods may fairly be identified may be relevant to the classification of the goods within the Tariff ...;
(vi) Descriptive terms may be of varying degrees of specificity (eg windscreen wiper blade refills, parts for a windscreen wiper or parts for a motor vehicle). Generic descriptions may be by reference to the materials or substances from which the goods are manufactured ...;
(vii) Identification will frequently extend to characterisation of goods by reference to their design features …..or by reference to their suitability for a particular use where those characteristics emerge from informed inspection of the goods as imported ... .The extent to which these characteristics may be relevant to the ultimate classification of the goods and whether evidence of the use to which goods are put after importation is relevant, will depend upon the language of the Tariff Nomenclature ...;
(viii) Composite goods, notwithstanding that they have components which are separately identifiable, may nevertheless be identifiable in combination as a new entity if the identity of the separate units is subordinated to the identity of the combination ...” (emphasis added).
In Times Consultants [1986] Davies J stated at [16]:
[16]. “In determining the essential character of goods, one is seeking to determine what essentially the goods are, not some characteristic that the goods may have. Essential character looks to the basic nature of the goods, to what they are. Composition, function and other factors will play a part in this determination.”
[17] When there is a set of goods of which one good has a nature or composition different from the other or others, it is possible on occasions to give an essential character to the totality of the goods. This occurs, for example, where one good is merely incidental or ancillary to the other or others. A motor vehicle which is imported, together with an owner's instruction manual and spare tools, may be classified for duty with the instruction book and the tools as a motor vehicle. I need not point to other illustrations. In such a case, the presence or absence of the good which is incidental or ancillary to the other or others will not affect the essential character of the set.
18. But where two goods have a different composition and nature and are put together in a set because they complement each other and because each adds a significant quality that the other does not have, one cannot ordinarily say that one article only gives to the set its essential character.
When Times Consultants Pty Ltd v Collector of Customs (Qld) [1987] FCA 311 (Times Consultants 1987) was again remitted from the Tribunal to the Full Federal Court the majority of the Court of Appeal Morling and Wilcox JJ stated at [12]:
“in our opinion it was a question of fact whether one material component gave to the goods there essential character. Accordingly, in order to succeed on this appeal to the court, it was necessary for the collector of customs to show that the majority of the Tribunal misdirected themselves in determining a question of fact…”
Their honours went on to say [13]:
“the authorities make it clear that in determining what is the essential character of the goods it is the state or condition of the goods at the time of importation that is the determining factor and that it is wrong to classify goods or to determine the essential character by reference to the purpose of the importer or of the purchaser. Regard must be had to the characteristics of the goods themselves, as they present themselves to an informed observer..
[16]. “It must always be remembered that the classification of goods for tariff purposes is a practical "wharfside" task. Upon some occasions it will be necessary for the classifier to obtain information to enable identification of the goods but it is entirely inappropriate that he or she should enter into enquiries upon matters such as cost, commercial advantage and purchaser preference which the Tribunal undertook. It ought normally be possible to classify goods merely by looking at them and by considering their nature and the function which they were designed to serve. In the case of goods made up in sets, it may be that there is no single essential character …” (emphasis added)
In Air International Pty Ltd v Chief Executive Officer of Customs [2002] FCA 355 Hill stated at [20] and [25]:
[20]“The expression "essential character" emphasises the point that particular goods may have more than one character so that, at least in such a case, it will be necessary, when embarking on the task of characterisation to look at that character which is "essential" and disregard any other inessential character”.
“[25] The requirement to adopt the most appropriate classification, as well as the statutory reference to essential character, makes it important, at least where goods may fall within more than one category, that the category is chosen which most fits the essential character of the goods in question.
(emphasis added).
The words used in the Tariff Act that grant the relevant concession from Customs Duty are “essential character” not component parts. The correct question to ask is does the mechanical nature of the Goods alter the Goods essential character not whether the goods meet those described in the TCO “precisely”.
In Solar Juice Pty Ltd and the Comptroller-General of Customs [2022] AATA 550 the Tribunal when considering the Customs Tariff (Anti- Dumpling) Act 1995 (Cth) had cause to consider the appropriate classification of goods. In this context the Tribunal had to consider unassembled solar panel mounting kits. After analysing the component parts of the goods as imported the Tribunal held the goods were a composite good having the essential character of a mounting system or kit to be installed on roofs on which solar panels were subsequently to be installed.[54]. Having found the goods as imported were not separate items but rather composite goods, namely systems or kits for Tin and Tile roofs, the Tribunal held the goods were not within the scope of the Dumping Notice issued under s 269TG of the Customs Act.
The Respondent and indeed Australian Board Force rely on the decisions of the Tribunal in Band Developments, and Toro and the Federal Court in Becker Vale when construing TCO’s in general. In doing so the Respondent and Australian Boarder Force appear not to have given any weight to the actual wording of the respective Tariff Classifications the Tribunal and Court were required to consider in the cases cited as authority for reading the word precisely into the Customs Act and /or the Tariff Act.
Authorities relied on by the Respondent - distinguished
In Brand Developers, the Tribunal was considering the Tariff Classification keyed to TCO/9107322. The tariff classification heading was in prescriptive terms:
“ PROCESSORS, food, hand operated, having ALL of the following functions:
(a) chopping;
(b) crushing;
(c ) grating;
(d) rasping;
( e) slicing
but NOT including pepper or salt grinding mills
Stated Use: Processing and preparing food”
(emphasis added)
When considering whether the goods fitted within the description of TCO 9107322, the Tribunal held at [44]:
… it seems to me that the cases decided under Part XVA in its current form do not support a submission that goods may come within a TCO when they have features over and above those that bring them within that TCO. The propositions that they do support are twofold. First, the goods must be characterised and classified under a tariff heading. They must then be considered in order to determine whether they can be said to be goods declared by a TCO, which is keyed to the tariff heading under which they are classified, to be goods to which Item 50 of Schedule 4 applies. Given the strict regime under which TCOs are made and given the purpose of the TCO system to ensure that industry is not taxed by the tariff where it is serving no protective function, it seems to me that the goods must meet those described in the relevant TCO precisely. (emphasis added)
The Tribunal found the plastic lid and Y shaped vegetable peeler were not part of the handheld food processor, they were separate from the processor and had no role to play in the operation of the food processor. The inclusion of the Y vegetable peeler and a plastic lid in the context of the wording of the TCO where sufficient for the Tribunal to determine the subject goods were beyond those described in the TCO.
In contrast TCO 0918948 uses wide language and the facts are quite different. All of the components in the kit fit together and operate as a single unit to facilitate the positioning of a cover securely over the cargo bed an extremely large and heavy on road truck used for the haulage of goods.
Further, all of the components are described in the list of 136 items that appear under the words “ANY of the following in TCO 0918948. Finally, the operative words in TCO 0918948 are “Any of the following” 136 items. There is no requirement that the items listed have specific functions. The language of the TCO is consistent with the broad description of items that are intended to be encompassed by the HS Code 8708 as set out in the HS Explanatory Notes to Chapter 87.
In the present case the parties agreed that Australian manufactures did not produce substitutable goods as that term is defined in s 269B of the Customs Act, and the core criteria for TCO 091898 were satisfied.
In Toro Australia Group Sales Pty Ltd v Chief Executive of Customs [2014] AATA 187 (Toro), the Tribunal found the garden hoses in question were composite goods set up for retail sale. The relevant TCO 0804831 was headed HOSE AND/OR TUBING, polyvinylchloride, polyester reinforced, flexible. The parties agreed “that in order to fall within the concession the goods must precisely meet the criteria set out in the TCO” [31]. The TCO in question specified the composition of the goods as PVC and polyester reinforcements whereas the hoses in question were made of nylon yarn. More importantly the TCO did not refer to fittings although the Tariff Classification keyed to the TCO referred to “plastic fittings”. The plastic or metal tap fittings included with the garden hoses in question were dealt with under a different TCO.
The Tribunal’s findings at [48]-[50] places the Tribunal’s decision in context:
[48]“ …Given the precise way in which the goods in the TCO must be described, had it intended to include fittings, I have no doubt it would have said so. In any event, especially having regard to the brass fittings attached to some of the hoses in question, the TCO could not have been keyed to heading 3917 alone.”
“[49] “ In my view the proper construction of the TCO is further supported by the fact that the fittings in this case are made of plastic and metal. They do not fit the description given to the goods in the TCO. Metal fittings also fall outside heading 3917 which refers only to goods made of plastic. The description in the TCO of the goods refers to specific types of plastics as well as the characteristic. The plastic fitings on the hoses plainly do not fit that descriptor.””
[50]“…To say that the goods fit the description precisely does not permit a finding that in addition to the description set out in the TCO, the goods have other characteristics or components. To fit the description precisely means that the goods must have no more or no less of the characteristics as set out in the description.”
In the matter before the Tribunal all of the components that make up the cover are listed in the TCO under the words “ANY of the Following”. As Davis J observed in Times Consultants [1986] “.. one ought not, in classifying goods for the purpose of the tariff look for subtleties”. Neither the Tariff Classification ( 87.08.29.99) or the TCO keyed to that Classification, (TCO 0918948) impose a requirement on the composition of the cover, the components of the cover, or limit the word cover to something applied manually.
Justice Yates in Becker Vale Pty Ltd v Chief Executive Officer of Customs [2015] FCA 525 (Becker Vale) was considering the meaning of ‘comprising’ used in the relevant Tariff Classification. Becker Vale concerned an appeal from the Tribunal where “it was not necessary for the Tribunal to consider, and the Tribunal did not consider, the applicability of the TCO”. On appeal his Honour upheld the Tribunal’s decision that the goods fell within classification 8504.34.00 and it was therefore unnecessary for his Honour to consider “whether according to its terms, the TCO applies”.
The Tariff Classification his Honour was dealing with was 8537.20.90 which is headed “Electrical Protection and Distribution Systems Comprising All the following:
switchgear;
busbars;
air circuit breaker panels;
withdrawalble unit panels;
withdrawable units;
DC switchgear panels;
power supply systems;
step up Transformers;
DC/DC converter;
battery;
battery charger;
Power control centres
The relevant component of the goods in Becker Vale, was a step-down transformer, that operated to transform higher voltage to a lower voltage. The stepdown transformer was not listed in the list of All component parts.
In his Obiter dicta decision when dealing with the word “precisely” in the context of the phrase “Comprising ALL of the following” used in TCO 8537.20.90 Yates J observed:
“ there is a line of authority that holds that, in order to fall within a tariff concession order, the goods must “precisely” meet the description of that order” (citing Brand Developments) “Neither party suggested that this line of authority should not be followed in the present case” (emphasis added)
“ Section 269F (3) (a) of the Customs Act provides that an application for a tariff concession order must contain a full description of the goods to which the application relates. (citing Toro Australia at [31] “a ‘full description necessarily means the description must be precise, the goods in question satisfying every element of the description without additional features”. “This reasoning ( referring to the decision in Toro at [31] ) supports a construction of “comprising” that exhaustively states the essential components making up the concessional goods as an electrical protection and distribution system. Otherwise, the description would not be a “full description”.
“The TCO does not, therefore describe an electrical protection and distribution system that functions to transform higher voltages to lower voltages. It follows, in my view, that the TCO cannot cover the goods. The contrary conclusion would be a curious outcome in the sense that it would provide a tariff concession for goods whose function is not secured by any of the components that are specifically listed in the TCO.”
“Accordingly, had it been necessary for me to decide whether the goods are covered by the TCO, I would have accepted the respondent’s submission and concluded that they are not covered”. (emphasis added)
The Australian Border Force publication “Interpreting a Tariff Concession Order” relies on the decisions in Brand Developers, Toro and Becker Vale to read into the Customs Act and the subordinated legislation made under that Act, a word that is not used in the legislation. There is no requirement in the Customs Act that imported goods must precisely match the words used in a TCO, what is required is a “full description of the goods”. The wording used in the Tariff Act is ‘essential character.’ The wording of each TCO must then be considered with respect to the goods in question to give effect to the intention of Parliament as expressed in the Customs Act and Tariff Act Sch 3. TCO’s made under the Customs Act are not a “one size fits all”. Furthermore, “the policy intent of the Tariff Concession System (TCS)”, is not “a government programme that supports Australian producers”. The Policy intent is to comply with Australia’s international obligations and not penalise Australian business by the impost of customs duty were “it is serving no protective function”
Full Description of the Goods
The documents supplied by the Applicant to the Respondent as part of the Respondent’s Red Line Processing included illustrative descriptive material (IDM), technical drawings, specifications, installation instructions and correspondence that repeatedly confirmed the Hycover Scoop Sheeting System came as a set and was not imported excluding any of the sections or parts.
The photographs in the Brochure clearly illustrate the tarpaulin is an integral part of the head section. The IDM also clearly shows the Goods have mechanical components that facilitate the cover being secured over the cargo bed of extremely large haulage trucks.
The Hycover Scoop Sheeting System is described in the various brochures supplied by the Applicant to the Respondent as a “roll on roll off sheeting system”, a “commercial vehicle covering system” a “hydraulic or mechanical tarping system” designed to cover extremely large on road trucks used by “haulage contractors in the waste and OEM’s in the Waste, Construction, and Agri Industries” (T7.1 – 7.3p 83- 91, T.3 p 86, T8.2 p 103 – 104, T20-1pp 153- 173 ).
It is inconceivable that after 10 months of reviewing the drawings, photographs of the cover in operation, the technical specifications, the description in the manufacture’s brochures and the information provided by the Applicant that the Respondent did not appreciate the cover was mechanically operated. Particularly as each refund application was subject to Redline Processing rather than simply being rubber stamped. The email sent by the Customs Officer to the Customs Agent dated 1 June 2023 [32] even refers to “ the motor”, “control box” and “remote control”, components that would not be necessary if the cover was applied manually.
Further, having reviewed the Explanatory Notes to HS Chapter 87 and 87.08 the Tribunal accepts the Applicants submission that to fall with Tariff Classification 8708.29.99 the goods must be of a mechanical nature, and the Respondent must have been aware that a cover without any mechanical components would never fall within tariff classification 8708.29.99
The questions asked by the Respondent and the answers supplied by the Applicant are evidence that “clear and full particulars” of the Goods were provided to the Respondent to allow the Respondent to make an objective determination that the Good’s fell within TCO 091898.
The questions for the Tribunal are:
(a) was a full description of the Goods provided to the Customs officer,
(b) was the essential character of a cover retained notwithstanding the tarpaulin is applied and secured mechanically rather than by hand.
The evidence before the Tribunal was contained in the Tribunal documents. There was no evidence before the Tribunal that in around November 2023 “additional information had been obtained” by the Respondent. On the contrary, the evidence before the Tribunal showed the Respondent had been provided with detailed technical drawings, the installation instructions, photographs of the cover in operation and the manufactures brochures. The invoices showed that none of the components or parts that make up the Goods were priced separately or were additional goods to the cover. The shipping documents indicated the components were packed together as kits they were not shipped individually. The evidence of the Applicant was the kits were supplied to the purchaser and all the purchaser needed to do was to install the Goods onto the haulage truck, simple assembly operations are not manufacturing for the purposes of the Customs Act.

The answer to the first question at [143] is yes. The Tariff Classification is for goods that have a mechanical function. The material provided by the Customs Agent clearly showed the mechanical function of the Goods. The Customs Officer was an “informed observer” it would have “ been possible to classify the Goods merely by looking at the” IDM “and considering the function the Goods were designed to serve” ( Times Consultants [1987]).
It was evident from the technical drawings that the sole purpose of the design was to make it easier for a truck driver to securely cover the cargo bed of a large haulage vehicle with a tarpaulin. A task that would appear to be extremely difficult if not impossible for a single person. The technical drawings showed the components or parts were integrated, they were designed to fit together. The mechanical parts had no independent work to do, the design was purely to facilitate rolling the cover into position and securing it over large cargo beds. Finally, the mechanical components were not able to be sold separately they were an integral part of the design that facilitated application of the Goods.
Applying the Tribunal’s reasons in Re Gissing to the Goods the answer to the second question at [143] is yes. A layman or man in the street seeing the Goods on a haulage truck would describe the goods as a cover. That description would not alter if a man in the street saw the covers being opened or closed mechanically. It follows, a layman would identify or describe the goods as a cover for large trucks not the individual component parts
The Tribunal finds the Goods:
(c)are covers designed for extremely large and heavy haulage trucks to safely secure the contents of the truck cargo bed,
(d)are designed to make the task of securely covering the cargo bed of a large haulage truck easier for the truck driver,
(e)come in a kit, the component parts are not sold separately and have no independent commercial value,
(f)are designed and manufactured to be used as a covering system for large and heavy haulage trucks’ as is clear from the manufactures brochure, technical drawings and photographs of the Hycover Scoop Sheeting System in operation,
(g)the “mechanical components are subordinated to the identity of the combination (Re Gissing (at 145)),
(h)the essential character remains a cover, just like the character of a commercial role of plastic cling wrap is not altered because the box it comes in attaches an “Ezy- Cutter Bar’ to make the application of the cling wrap easier.
CONCLUSION
On the evidence before the Tribunal the Tribunal finds the Hycover Scoop Sheeting Systems is a composite good being a cover operated mechanically to assist the truck driver secure the cover to the cargo bed of large on road vehicles with a GVM range of 22.5 to 32 Tonnes. The mechanical components do not alter the essential character of the cover. Just as the roof of a sports car that opens and closes mechanically retains its essential character as the roof of the sports car, the mechanical opening and closing system for the tarpaulin manufactured by Transcover does not change the tarpaulin’s essential character as a cover for a haulage vehicles cargo bed. The Hycover Scoop Sheeting System is no less of a cover simply because it no longer must be removed and replaced by hand.
Imposing a tariff on the Hycover Scoop Sheeting Systems would be serving no protective function. The evidence before the Tribunal was there are no substitutable goods produced in Australia in the ordinary course of business. Further to read words into the Customs Act that narrow the scope of the words actually used by the legislature is not only impermissible but does not align with Australia’s international obligations under the WTO Agreements, the GTTA and Australia’s commitments under the AUS/ UK FTA.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Hycover Scoop Sheeting Systems complies with the requirements of Tariff Concession Order (TCO) 2204317, previously Tariff Concession Order 0918948.
The matter is remitted to the Respondent for calculation of the refund payable to the Applicant for the subject goods with the following direction:
The subject goods are eligible for Tariff Concession Order 2204317, formerly 0918948, as the goods are a composite good that retain the essential character of “covers” and are an accessory for on-road trucks having a gross vehicle weight of not less than 7.5 tonnes.

Date(s) of hearing: On the papers

s For the Applicant: Mr Wayne Sinnott JD ad RD Customs Brokers

Solicitors for the Respondent: Mr James Millea, Senior Lawyer Department of Home Affairs

Date(s) of hearing:	On the papers
s For the Applicant:	Mr Wayne Sinnott JD ad RD Customs Brokers
Solicitors for the Respondent:	Mr James Millea, Senior Lawyer Department of Home Affairs