EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0506109
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.
Beringer Blass Wine Estates Ltd applied for a TCO in respect of certain warehouse storers and retrievers on 20 May 2005.
Instrument
TCO No 0506109 was made on 07 October 2005. It declares that those certain warehouse storers and retrievers 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. 0506109 is taken to have come into force on 20 May 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. 0506109, made under the Customs Act 1901, was enacted in 2005 to address the issue of granting tariff concessions for certain goods. This legislation was introduced to facilitate the application process for tariff concessions, ensuring that goods which meet specific criteria can benefit from reduced customs duties. The Customs Act 1901, enacted by the Parliament of Australia, provides a framework for the administration of customs and excise, including the establishment of tariff concession orders. The policy objective behind this instrument is to enable the Chief Executive Officer of Customs to make decisions on tariff concessions based on the core criteria, thereby providing relief to businesses by reducing the cost of imported goods that do not have substitutable Australian-produced alternatives.
Scope and Application
The Customs Act 1901, specifically under Part XVA, provides a framework for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These orders apply to goods that are eligible for a reduced rate of customs duty as outlined in the relevant item of Schedule 4 to the Customs Tariff Act 1995. The Act applies to any person or entity that can demonstrate that the goods in question are not substitutable by goods produced in Australia and are not specified in section 269SJ of the Act, which lists goods ineligible for TCOs. The scope of the legislation is national, as it operates under the Commonwealth jurisdiction and is administered by the Chief Executive Officer of Customs. The Act does not disadvantage any person, including the Commonwealth, by affecting their rights as they stood on the date of registration of the TCO. Additionally, the Act allows for the TCO to be extended or restricted through subordinate instruments, facilitating its application across various industries and transactions.
Key Provisions
The Customs Act 1901, as amended, provides for the creation of Tariff Concession Orders (TCOs) through Part XVA, which facilitates lower customs duty rates for specific goods. Section 269F allows individuals or entities to apply to the Chief Executive Officer (CEO) of Customs for a TCO. Provided the goods do not fall under the exclusions listed in section 269SJ, the CEO must assess whether the application meets the core criteria specified in section 269C. Specifically, the application is valid if, on the day it was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Definitions for key terms such as 'goods produced in Australia,' 'ordinary course of business,' and 'substitutable goods' are provided in sections 269D, 269E, and 269F respectively. If the CEO determines that the application meets these criteria, a TCO must be issued, as per section 269P(3), effectively applying a prescribed rate of duty from Schedule 4 of the Customs Tariff Act 1995 to the specified goods.
The obligations under this Act primarily involve the CEO of Customs, who must ensure that any TCO application is processed correctly and in accordance with the statutory requirements. This includes verifying that the goods in question are not substitutable and were not produced in Australia on the date the application was lodged. Additionally, the CEO must publish a notice in the Gazette, inviting submissions from interested parties who may object to the TCO being issued, as required by section 269K(1). Failure to follow these procedural steps could render the TCO invalid or subject to legal challenge.
Breaches of the provisions outlined in the Customs Act 1901, particularly concerning the issuance and enforcement of TCOs, can result in both civil and criminal consequences. While specific offences and penalties are not detailed in the provided text, it is common for such breaches to incur penalties that may include fines and potential imprisonment, depending on the severity and intent behind the violation. For instance, knowingly providing false information in a TCO application could lead to significant legal repercussions, including criminal charges. The exact penalties would be determined based on the specific breach and would be in line with general criminal and civil law principles in Australia.