EXPLANATORY STATEMENT
Tariff Concession Instrument No.0503968
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 malting germinator water spray atomisers on 6 April 2005.
Instrument
TCO No 0503968 was made on 17 June 2005. It declares that those certain malting germinator water spray atomisers 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. 0503968 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 Australian Parliament, includes provisions for Tariff Concession Orders (TCOs) which provide for lower rates of customs duty on specified goods. The Tariff Concession Instrument No. 0503968, made in 2005, is one such order that applies to certain malting germinator water spray atomisers, granting them a tariff concession from the general duty rate of 5% down to free. This instrument was introduced to address the specific needs of importers who required these goods, ensuring they were not disadvantaged by higher import tariffs. The instrument was made following an application by Joe White Maltings Pty Ltd, and after the Chief Executive Officer of Customs determined that the application met the core criteria, including the absence of substitutable goods produced in Australia. The instrument came into effect on the date of the application, 6 April 2005, and no submissions opposing the concession were received, thereby facilitating the tariff reduction for the specified goods.
Scope and Application
The Tariff Concession Instrument No. 0503968 applies to Joe White Maltings Pty Ltd in respect of certain malting germinator water spray atomisers, allowing for a lower rate of customs duty on these specific goods as outlined under Part XVA of the Customs Act 1901. This concession is applicable on a Commonwealth level, where the Chief Executive Officer of Customs has the authority to make such orders provided the core criteria are met, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the date of application. The geographic reach of this Act pertains to goods that are imported into Australia, and it is applicable to transactions involving these particular goods. The Act explicitly excludes goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a Tariff Concession Order. The Instrument extends the application of the Act through the subordinate instrument, which was registered on 17 June 2005 and came into effect on 6 April 2005, the date of application.
Key Provisions
The Tariff Concession Instrument No. 0503968 applies under the Customs Act 1901, which allows for the granting of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). Section 269F of the Act enables a person to apply for a TCO in respect of goods. If the application is valid and meets the core criteria specified in section 269C, the CEO must make a written order, a TCO, that declares the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. This particular TCO, No. 0503968, pertains to certain malting germinator water spray atomisers, declaring that these goods are subject to item 50 of Schedule 4 to the Tariff, resulting in a duty rate of free instead of the general rate of 5%.
The Act imposes obligations on the CEO to ensure that the application for a TCO is valid and meets the specified criteria. According to section 269C, the core criteria require that on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Definitions for terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269D, 269E, and 269F respectively. Additionally, subsection 269K(1) mandates that the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made. In this instance, no submissions were received.
In terms of civil or criminal consequences for breach, the Act does not specify any direct penalties for failing to comply with the TCO provisions. However, non-compliance with the terms of a TCO, such as importing goods without the necessary concessions, could potentially lead to duty being owed on those goods. The Act ensures that the rights of any person (other than the Commonwealth) as at the date of registration are not adversely affected by the TCO, nor are they imposed with liabilities for actions taken prior to the registration date. Importers stand to benefit from this TCO by being eligible to apply for a refund of duty on goods imported since the TCO is taken to have come into force.