EXPLANATORY STATEMENT
Tariff Concession Instrument No.0503782
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.
Joe White Maltings Pty Ltd applied for a TCO in respect of certain kiln loading and unloading machines on 6 April 2005.
Instrument
TCO No 0503782 was made on 10 June 2005. It declares that those certain kiln loading and unloading machines 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 free.
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. 0503782 is taken to have come into force on 6 April 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, introduces a framework for Tariff Concession Orders (TCOs) to provide relief on customs duties for certain goods. These concessions are administered by the Chief Executive Officer of Customs, who must determine whether an application for a TCO meets specific criteria, such as the absence of substitutable goods produced in Australia. The instrument F2005L01494, specifically TCO No. 0503782, was enacted to address the need for tariff relief for certain kiln loading and unloading machines, ensuring that these goods benefit from a reduced duty rate of 5% as opposed to the standard rate. The instrument came into effect on 6 April 2005, and the process involved public consultation, though no objections were received. The policy objective of this measure is to support Australian industries by making essential machinery more affordable, thereby potentially stimulating economic activity and improving competitiveness.
Scope and Application
The Tariff Concession Instrument No. 0503782 under the Customs Act 1901 applies to entities or individuals seeking tariff concessions for specific goods entering Australia, particularly in cases where no substitutable goods are produced domestically. The instrument facilitates the granting of a Tariff Concession Order (TCO) by the Chief Executive Officer of Customs, which allows for a lower rate of customs duty on the specified goods, in this case, certain kiln loading and unloading machines. The application of the Act is national, extending across the Commonwealth of Australia, and it impacts the importation of goods by providing tariff relief. The TCO exempts the specified goods from the general rate of duty, which is 5%, and instead subjects them to a free rate of duty. Notably, the TCO does not disadvantage any person or impose liabilities on individuals or entities for actions taken prior to the date of the TCO's registration, thus protecting existing rights and obligations. Additionally, the legislation mandates that the CEO must publish a notice inviting public submissions if there are reasons against making the TCO, although in this instance, no submissions were received. The TCO is effective from the date the application was lodged, ensuring prompt applicability to the affected goods.
Key Provisions
The primary operative sections of this legislation pertain to the creation and application of Tariff Concession Orders (TCOs) under Part XVA of the Customs Act 1901 (the Act). Section 269F allows for an application to be made to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of certain goods. If the CEO is satisfied that the application is valid and meets the core criteria outlined in section 269C, the CEO must make a written order (the TCO) declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)). For example, TCO No. 0503782, made on 10 June 2005, declares that certain kiln loading and unloading machines are subject to a tariff concession, with a duty rate of free instead of the general rate of 5%.
The obligations and requirements imposed by the Act on the parties it governs include the submission of a valid application for a TCO and the CEO’s duty to assess the application against the core criteria. 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 (subsection 269K(1)). Once an application is accepted as valid, the CEO must decide whether it meets the core criteria, including ensuring that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). If the CEO is satisfied that the application meets the criteria, a TCO is to be made, which declares the goods to which a prescribed tariff applies.
For breaches of the provisions outlined in the Customs Act 1901, various offences and penalties may apply. However, the specific Act does not detail these penalties within the explanatory statement. In general, the Customs Act 1901 may include civil or criminal penalties for offences such as providing false or misleading information in an application, evading duty, or contravening the terms of a TCO. The maximum penalties can vary depending on the severity and intent of the breach but can include fines and imprisonment for serious or repeated offences. The exact nature and extent of the penalties would be found in the relevant sections of the Customs Act 1901 and any associated regulations.