EXPLANATORY STATEMENT
Tariff Concession Instrument No.0413050
Customs Act 1901
Background
Part XVA of the Customs Act 1901 (the Act) sets out a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). A lower rate of customs duty applies to goods that are the subject of a TCO.
Under section 269F of the Act, a person may apply to the CEO for a TCO in respect of goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ of the Act, which sets out those goods that cannot be subject to a TCO, the CEO must decide whether the application meets the core criteria.
Section 269C of the Act provides that a TCO application meets 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. Section 269B of the Act provides that ‘goods produced in Australia’ has the meaning given by section 269D, ‘ordinary course of business’ has the meaning given by section 269E and ‘substitutable goods’ in respect of goods the subject of a TCO application, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application can be put.
Subsection 269P(3) of the Act provides that if the CEO is satisfied that a TCO application meets the core criteria, the CEO must make a written order (a TCO) declaring that the goods the subject of the TCO application are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) specified in the order applies.
Subsea 7 Australia Pty Ltd applied for a TCO in respect of certain cable tensioners on 29 November 2004.
Instrument
TCO No 0413050 was made on 4 February 2005. It declares that those certain cable tensioners are goods to which item 50 of Schedule 4 to the Tariff applies since the CEO was satisfied that no substitutable goods were produced in Australia. The general rate of duty on these goods is 5%. The rate of duty for the goods subject to the TCO is 3%.
Consultation
Subsection 269K(1) of the Act provides in part that as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette which includes an invitation to any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. The CEO did not receive any submissions in response to this invitation.
Commencement
Subsection 269S(1) relevantly provides that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged. TCO No. 0413050 is taken to have come into force on 29 November 2004.
The TCO does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The rights of importers will be beneficially affected. Under paragraph 126(1)(r) of the Regulations, importers of such goods will be able to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. The TCO does not impose any liabilities on any person.
Overview
The Customs Act 1901, enacted by the Parliament of Australia, addresses the need to provide tariff concessions on certain imported goods. The Act provides a mechanism through which the Chief Executive Officer of Customs can make Tariff Concession Orders (TCOs) to apply lower rates of customs duty on specific goods. The objective of this legislation, as expressed in the explanatory statement, is to provide tariff relief for imported goods where no substitutable goods are produced in Australia. In this context, substitutable goods are defined as those produced in Australia that can be used in the same way as the imported goods. The enactment of this Act ensures that businesses can benefit from reduced customs duties on certain goods, provided that no equivalent goods are being produced domestically. This mechanism supports competitive pricing and potentially stimulates economic activity by making imported goods more affordable.
Scope and Application
The Tariff Concession Instrument No. 0413050, made under the Customs Act 1901, applies to the importation of certain cable tensioners, as specified by Subsea 7 Australia Pty Ltd. This instrument is applicable to any individual or entity seeking to import these goods, and it provides a lower rate of customs duty than the general tariff. The geographic and jurisdictional reach of this Act extends across the Commonwealth of Australia, as it is a federal statute. The Act does not apply to goods specified in section 269SJ, which includes those that are not eligible for tariff concessions, and it applies retroactively to the date the application was lodged, which was 29 November 2004. The Act does not impose any liabilities on any person, and it allows for the possibility of a refund of duties paid on imports of the specified goods since the effective date of the concession. Any further specifics or extensions of the application of this Act are to be found in subordinate instruments, which may detail additional criteria or procedural requirements.
Key Provisions
The main sections of the Tariff Concession Instrument No. 0413050 under the Customs Act 1901 (section 269F) permit the Chief Executive Officer of Customs (CEO) to grant Tariff Concession Orders (TCOs) for goods that do not have Australian-produced substitutes. Section 269C stipulates that a TCO application is eligible if, on the day the application was submitted, there were no substitutable goods produced in Australia in the ordinary course of business. Section 269B provides definitions for key terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods." If the CEO is satisfied that the application meets the core criteria, a written order, or TCO, must be issued (section 269P(3)). This particular TCO, No. 0413050, applies to certain cable tensioners, reducing the duty rate from the general 5% to 3%.
The obligations under this Act impose several requirements on the parties involved. Subsea 7 Australia Pty Ltd, as the applicant, must submit a valid application to the CEO. The CEO, upon receiving a valid application, must publish a notice in the Gazette, inviting submissions from any interested parties (section 269K(1)). The CEO must then evaluate the application against the core criteria and decide whether to issue a TCO. Additionally, the CEO must ensure that the TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities in respect of actions taken before the TCO's effective date.
Offences and penalties under the Customs Act 1901 are not explicitly detailed in the provided sections of the explanatory statement. However, it is implied that any misuse or non-compliance with the provisions of the TCO could result in civil or criminal consequences, although specific penalties are not stated in this excerpt. The Act generally allows for the imposition of penalties for breaches, which could include fines or other sanctions as prescribed by law. It is essential for entities and individuals governed by this Act to adhere strictly to the outlined procedures and criteria to avoid any potential legal repercussions.