EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0505242
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.
Treofan Australia Pty Ltd applied for a TCO in respect of certain Plastic Film Winders on 12 May 2005.
Instrument
TCO No 0505242 was made on 23 September 2005. It declares that those certain Plastic Film Winders 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 0%.
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. 0505242 is taken to have come into force on 12 May 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 Tariff Concession Instrument No. 0505242 was enacted in 2005 under the Customs Act 1901. This legislation was introduced to address the need for tariff concessions on specific imported goods, ensuring that Australian industries remain competitive by reducing the duty on certain items. The enacting body, the Parliament of Australia, aimed to facilitate smoother trade by providing concessions that lower the customs duty rates on goods not produced domestically or for which there are no suitable substitutes. The policy objective of this instrument was to provide tariff relief for imported goods, in this case, certain Plastic Film Winders, thereby benefiting importers who could now apply for duty refunds for goods imported since the commencement date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0505242 under the Customs Act 1901 applies to the concession of customs duty on certain Plastic Film Winders, a type of goods that has been specifically identified in the application submitted by Treofan Australia Pty Ltd. The Act allows for the creation of Tariff Concession Orders (TCOs) through which the Chief Executive Officer of Customs (CEO) can reduce the rate of customs duty on certain goods if they meet specific criteria. This instrument is applicable to the goods specified in the application, provided that no substitutable goods are produced in Australia in the ordinary course of business. The CEO must determine that the application meets the core criteria as outlined in the Act, including ensuring that no substitutable goods are being produced domestically. The geographic reach of this legislation is national, as it operates under the purview of the Commonwealth, and its application is confined to the goods identified in the TCO.
The Act does not specify exclusions or exemptions beyond those goods listed in section 269SJ of the Customs Act 1901, which are ineligible for TCOs. The application of this TCO extends to all transactions involving the importation of the specified Plastic Film Winders from the date the application was lodged, 12 May 2004. The TCO does not affect any existing rights or impose any liabilities on persons other than the Commonwealth in respect of actions taken before the TCO’s registration. Any subordinate instruments that may extend or further define the application of this TCO would be made under the authority of the Customs Act 1901 and related regulations.
Key Provisions
The Tariff Concession Instrument No. 0505242, under the Customs Act 1901, establishes a tariff concession order (TCO) for certain Plastic Film Winders, effectively reducing the duty rate from 5% to 0%. The primary sections involved are sections 269C, 269B, 269D, 269E, 269F, and 269P(3). Section 269C specifies that a TCO can be made if no substitutable goods are produced in Australia. Sections 269B, 269D, and 269E define key terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods'. Section 269F allows for the application of a TCO, while section 269P(3) mandates the CEO to make a written order if the application meets the core criteria.
The Act imposes several obligations on the parties involved. The CEO of Customs must review the application to ensure it does not pertain to goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The CEO must also ensure that the application meets the core criteria outlined in section 269C. Once satisfied, the CEO is required to make a written TCO under section 269P(3). Additionally, the CEO must publish a notice in the Gazette under subsection 269K(1) inviting submissions on the TCO application. If no submissions are received, the CEO can proceed to make the order.
Breaches or non-compliance with the provisions of the Customs Act 1901 and the associated regulations can lead to various legal consequences. While the specific offences and penalties are not detailed in the explanatory statement, the general scheme of the Act includes provisions for penalties under the Crimes Act 1914 and the Customs Act 1901 itself. These may include fines, imprisonment, or other civil or criminal penalties as prescribed by the relevant legislation. The severity of these penalties would depend on the nature and extent of the breach.
For instance, fraudulent applications or misrepresentations in a TCO application could potentially lead to criminal charges under the Crimes Act 1914, which may include fines or imprisonment. Civil penalties could also apply for non-compliance with customs duties, potentially resulting in financial penalties or other civil remedies. It is important to note that the specifics of these penalties are not elaborated upon in the explanatory statement but would be governed by the broader legal framework under which the Customs Act 1901 operates.
In summary, the Tariff Concession Instrument No. 0505242 under the Customs Act 1901 provides for a tariff concession on certain Plastic Film Winders, with key provisions and obligations outlined in sections 269C, 269B, 269D, 269E, 269F, and 269P(3). The CEO of Customs must review applications and ensure they meet the core criteria, publish notices in the Gazette, and make written orders where appropriate. Breaches of these provisions can lead to various civil and criminal penalties under the broader legal framework.