We have been contacted by many customs brokers and importers that have face Australian Border Force (ABF) compliance activity around the use of a tariff concession order (TCO) applying to certain aluminium tableware.  The compliance activity has resulted in multiple demands against importers based on a narrow view as to what is "tableware".  The Administrative Appeals Tribunal (AAT) has recently ruled against that narrow view calling into doubt, the correctness of the ABF past demands.

In Mayo Hardware Pty Ltd and Comptroller-General of Customs [2018] AATA 4205 the AAT had to consider whether disposable aluminium BBQ roasting trays fit within a TCO take reads "TABLEWARE, aluminium, being ANY of the following:" and then lists over 40 items, including "trays".

It was agreed by the parties that the goods were aluminium trays.  The key issue was whether the BBQ trays were correctly described as "tableware".

In its compliance activity, the ABF has taken a very narrow view of tableware as being dishes and utensils primarily used for serving and eating meals at a table.  The ABF has at times excluded any items that also had a role in heating or cooking food.

As a finding of fact, the AAT found that the trays could be used for both cooking food in a BBQ or for serving food at either an indoor or outdoor table.  Given the nature of the other goods listed in the TCO (may of which did not have a predominate use of serving food), the AAT held that the TCO should not be limited to goods that have one predominate use.  The fact that the BBQ trays were used to cook food before being used to serve food, did not prevent them being "tableware" as that term is used in the TCO.

The AAT acknowledged that this was a matter on which reasonable minds may differ.  This will often be the case when the matter in dispute is the meaning of an everyday word in a TCO or tariff heading.  The case is a good example of where it can be worth taking a matter to the AAT if only for the benefit of having a decision maker from outside the ABF review the matter.

Customs has 28 days to appeal the decision to the Federal Court.  If it does not, importers who have been accused of incorrectly using the tableware TCO should be reviewing their refund options.

If you disagree with an ABF assessment of the scope of a TCO please feel free to contact us for an free initial discussion.

Customs and Global Trade contacts

Russell Wiese
03 8602 9254
rwiese@huntvic.com.au