EXPLANATORY STATEMENT
Tariff Concession Instrument No.0503993
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.
G James Australia Pty Ltd applied for a TCO in respect of certain targets for glass coating machines on 8 April 2005.
Instrument
TCO No 0503993 was made on 17 June 2005. It declares that those certain targets for glass coating 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. 0503993 is taken to have come into force on 8 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 Tariff Concession Instrument No. 0503993, enacted in 2005 under the Customs Act 1901, addresses the need to provide tariff concessions for specific goods, thereby reducing the customs duty on those goods. This instrument was created to facilitate the application process for tariff concessions by allowing the Chief Executive Officer of Customs to make written orders, known as Tariff Concession Orders (TCOs), which specify the reduced duty rates for certain goods. The objective of this legislative measure is to ensure that when an application for a TCO is deemed to meet the core criteria, the CEO must make an order that lowers the duty on the specified goods, promoting fair trade practices and potentially benefiting importers by reducing their duty liabilities. The instrument was introduced to streamline the tariff concession process and to provide clarity and efficiency in applying duty reductions to eligible goods.
Scope and Application
The Tariff Concession Instrument No. 0503993, enacted under the Customs Act 1901, pertains to the application of Tariff Concession Orders (TCOs) for specific goods, in this case, certain targets for glass coating machines. This legislation applies to entities such as G James Australia Pty Ltd, which applied for the concession, and to importers of the affected goods who can benefit from reduced customs duty rates or apply for duty refunds. The geographic and jurisdictional reach of this Act is national, extending across Australia as it is administered under the Commonwealth's customs framework. The Act allows for the exclusion of certain goods from TCOs as specified in section 269SJ of the Customs Act, and the application process requires scrutiny to ensure that no substitutable goods are produced in Australia. The TCO does not retroactively disadvantage or impose new liabilities on individuals or entities other than the Commonwealth, ensuring that rights and obligations are preserved as per the commencement date of the application.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0503993, as part of the Customs Act 1901, establish the framework for making Tariff Concession Orders (TCOs). Section 269F allows an individual to apply to the Chief Executive Officer of Customs (CEO) for a TCO regarding certain goods. If the CEO is convinced that the application is valid and the goods do not fall under the category specified in section 269SJ, they must then determine if the application meets the core criteria set out in section 269C. This involves ensuring that no substitutable goods were produced in Australia on the day the application was lodged, as defined by sections 269D and 269E.
The Act imposes specific obligations and requirements on the parties involved in the TCO process. The CEO must publish a notice in the Gazette, inviting any interested party to submit objections or reasons why the TCO should not be granted, as stipulated in subsection 269K(1). This ensures transparency and provides an opportunity for stakeholders to voice their concerns. In this instance, no submissions were received, indicating a lack of opposition to the TCO. Additionally, once the CEO is satisfied that the application meets the core criteria, they must issue a written TCO, as per subsection 269P(3).
In terms of consequences for breach, the Customs Act 1901 does not specify offences or penalties directly related to the non-compliance with the TCO provisions. However, general legal principles and any associated regulations may still apply. The Act ensures that the TCO does not disadvantage any person other than the Commonwealth and does not impose liabilities on any person for actions taken before the TCO was registered. This means that while the rights of importers are beneficially affected, enabling them to apply for a refund of duty on goods imported since the TCO came into force under paragraph 126(1)(r) of the Regulations, the Act provides protection against retroactive liabilities.