EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0506113
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.
ASD Paper Recyclers T/As Earthcare Recyclers applied for a TCO in respect of certain recyclable plastic bottles sorters on 23 May 2005.
Instrument
TCO No 0506113 was made on 07 October 2005. It declares that those certain recyclable plastic bottles sorters 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. 0506113 is taken to have come into force on 23 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 Customs Act 1901 was enacted to regulate the importation and exportation of goods in Australia, ensuring compliance with customs regulations and the collection of relevant duties. The Act includes provisions for Tariff Concession Orders (TCOs), which allow for the reduction or exemption of customs duties on specified goods under certain conditions. Enacted by the Australian Parliament, the Customs Act aims to facilitate trade while protecting domestic industries and revenue. Specifically, the Tariff Concession Instrument No. 0506113 was introduced to address the need for tariff concessions on certain recyclable plastic bottles sorters, ensuring that these goods, essential for environmental sustainability, are accessible without the burden of customs duty. This instrument was made to provide tariff relief to ASD Paper Recyclers T/As Earthcare Recyclers, effective from the date the application was lodged, 23 May 2005, with no adverse effects on existing rights or liabilities.
Scope and Application
The Tariff Concession Instrument No. 0506113 applies to any person or entity seeking a tariff concession on goods imported into Australia, as specified under the Customs Act 1901. This Act governs the administration of customs and excise in Australia and allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) to lower the rate of customs duty on certain goods. The application of the TCO No. 0506113 pertains specifically to certain recyclable plastic bottles sorters, where the CEO determined that no substitutable goods were produced in Australia. This Act applies across the Commonwealth of Australia and affects all importers of the specified goods. The legislation excludes any goods that are specified in section 269SJ of the Customs Act 1901, which lists goods that cannot be subject to a TCO. The application of the Act may be extended or restricted through subordinate instruments, which may include regulations or further orders made by the CEO under the authority of the Customs Act 1901. The TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on any person in respect of anything done or omitted to be done before the date of registration.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0506113 (referenced as TCO No. 0506113) are sections 269C, 269P, and 269S of the Customs Act 1901 (the Act). These sections stipulate the criteria that must be met for an application for a Tariff Concession Order (TCO) to be considered valid. Specifically, section 269C requires that, on the day the application is lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) mandates that if these core criteria are satisfied, the Chief Executive Officer of Customs (the CEO) must make a written order, declaring that the goods the subject of the TCO application are to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. Section 269S(1) states that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged.
The obligations imposed by the Act on the parties involved, particularly the CEO, include ensuring that an application for a TCO is assessed against the criteria set out in sections 269C and 269P. If the CEO is satisfied that the application meets the core criteria, the CEO must proceed to make a written order, effectively a TCO, as per section 269P(3). Furthermore, the CEO must also publish a notice in the Gazette, inviting any interested party to lodge submissions if they believe there are reasons why the TCO should not be made (subsection 269K(1)). In this case, the CEO did not receive any submissions in response to the published notice.
In terms of breaches and penalties, the Act does not explicitly detail specific offences, penalties, or consequences for failure to comply with the TCO provisions. However, the Act does imply that the rights of persons (other than the Commonwealth) are not adversely affected by the TCO, and no new liabilities are imposed on any person in respect of actions taken before the TCO’s effective date. This suggests that the primary consequence of non-compliance or failure to meet the criteria for a TCO would be the denial of the tariff concession, meaning that the higher duty rate would apply. The Act does not specify maximum penalties for such breaches, but it ensures that the rights of importers will be beneficially affected, with potential for duty refunds under the Regulations.