EXPLANATORY STATEMENT
Tariff Concession Instrument No.0502566
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.
Tooheys Pty Ltd applied for a TCO in respect of certain beer stabilisers on 23 February 2005.
Instrument
TCO No 0502566 was made on 6 May 2005. It declares that those certain beer stabilisers 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. 0502566 is taken to have come into force on 23 February 2005.
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, provides a framework for the administration of customs and excise duties, including a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (CEO). The purpose of this legislation is to allow for the reduction of customs duty on certain goods where appropriate, thereby promoting trade and industry. Tariff Concession Instrument No. 0502566, made on 6 May 2005, is an example of such an order. This particular instrument was introduced in response to an application by Tooheys Pty Ltd for a concession on certain beer stabilisers, resulting in a reduction of duty from the general rate of 5% to 3%. This legislative instrument aims to ensure that the rights of importers are beneficially affected, providing them with the opportunity to apply for a refund of duty on goods imported since the effective date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0502566 under the Customs Act 1901 applies specifically to certain beer stabilisers as requested by Tooheys Pty Ltd, which were granted a tariff concession order by the Chief Executive Officer of Customs. This concession applies to the importation of these specified goods and provides a lower rate of customs duty compared to the general rate. The Act allows for such tariff concessions where the CEO determines that no substitutable goods are produced in Australia and that the application meets the core criteria outlined in the Act. The concession does not extend to goods specified in section 269SJ of the Act, which cannot be subject to a tariff concession order. Jurisdictionally, the application of this Act is national, as it is an instrument of the Commonwealth of Australia. The application process includes a requirement for the CEO to publish a notice in the Gazette inviting submissions from any interested parties, although in this case, no submissions were received. The commencement of the tariff concession is deemed to be on the date the application was lodged, in this instance, 23 February 2005. Importantly, the TCO does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on any person in respect of actions taken prior to the registration of the TCO.
Key Provisions
The key operative sections of this legislation concern Tariff Concession Orders (TCOs) under the Customs Act 1901 (the Act) (s 269C, s 269F, s 269P). Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods, provided that the goods are not specified in section 269SJ of the Act. If the CEO is satisfied that the application meets the core criteria outlined in section 269C, they 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 applies (s 269P(3)). In this case, the TCO No 0502566 was made on 6 May 2005, declaring that certain beer stabilisers are goods to which item 50 of Schedule 4 to the Tariff applies.
The obligations and requirements the Act imposes on the parties it governs include the requirement for a person to apply to the CEO for a TCO in respect of goods, provided that the goods are not specified in section 269SJ of the Act (s 269F). If the CEO is satisfied that the application meets the core criteria outlined in section 269C, they 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 applies (s 269P(3)). The CEO must also publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO (s 269K(1)). The CEO must decide whether the application meets the core criteria, which includes ensuring that no substitutable goods were produced in Australia in the ordinary course of business on the day on which the application was lodged (s 269C).
There are no specific offences, penalties, or civil/criminal consequences for breach of the Act mentioned in this legislation. However, if the CEO is not satisfied that a TCO application meets the core criteria, they are not required to make a TCO (s 269P(3)). 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 (s 269S(1)). The rights of importers will be beneficially affected, and they 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 (s 126(1)(r) of the Regulations). The TCO does not impose any liabilities on any person.