EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0509830
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.
IVECO Trucks Australia Limited applied for a TCO in respect of certain single and/or dual cab-chassis on 22 July 2005.
Instrument
TCO No 0509830 was made on 14 October 2005. It declares that those certain single and/or dual cab-chassis 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. 0509830 is taken to have come into force on 22 July 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 Parliament of Australia, provides a framework for administering customs and excise duties, including the ability for the Chief Executive Officer of Customs (CEO) to make Tariff Concession Orders (TCOs) that offer a lower rate of customs duty on certain goods. This Act was introduced to address the need for a flexible mechanism to respond to economic and trade conditions by providing tariff relief on goods where appropriate. The instrument in question, Tariff Concession Instrument No. 0509830, was introduced on 14 October 2005, and it addresses the specific application by IVECO Trucks Australia Limited for tariff concessions on certain single and/or dual cab-chassis, which the CEO approved due to the absence of substitutable goods produced in Australia. The policy objective behind this measure is to support the import of these goods by reducing their duty rates, thereby potentially boosting related industries and trade.
Scope and Application
The Tariff Concession Instrument No. 0509830, under Part XVA of the Customs Act 1901, applies to individuals or entities seeking tariff concessions on imported goods, specifically certain single and/or dual cab-chassis. The application of this instrument is contingent upon the Chief Executive Officer of Customs determining that no substitutable goods are produced in Australia, thereby satisfying the core criteria set out in the Act. The instrument provides a lower rate of customs duty, in this case, a reduction to free from the general 5% duty, on the specified goods as per the order. The instrument applies nationally across Australia, as it operates under the Commonwealth's customs legislation, and its scope is not restricted by state or territory boundaries. The application process involves a public notice in the Gazette inviting submissions, though in this instance, none were received. The instrument is effective from the date the application was lodged, which is 22 July 2005, and it does not disadvantage any person or impose liabilities on any person in relation to actions taken prior to the instrument's registration.
Key Provisions
The main operative sections of the legislation in question are sections 269C, 269P(3), and 269SJ of the Customs Act 1901, which govern the making of Tariff Concession Orders (TCOs). Under section 269F, a person can apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO determines that the application is not in respect of goods that are explicitly excluded under section 269SJ, they must then assess whether the application meets the core criteria as outlined in section 269C. If the CEO is satisfied that the application meets these criteria, they are required to make a TCO as per section 269P(3). In this case, TCO No. 0509830 was made on 14 October 2005, declaring that certain single and/or dual cab-chassis are goods to which a specific item in Schedule 4 of the Customs Tariff Act 1995 applies, effectively making the duty on these goods free.
The Customs Act 1901 imposes certain obligations on the parties involved in the process of applying for and granting a TCO. Firstly, the applicant must ensure that their application is valid and not in respect of goods that fall under the exclusions listed in section 269SJ. The CEO, on receiving the application, has the obligation to determine whether the application meets the core criteria specified in section 269C, which includes verifying that no substitutable goods were produced in Australia on the day the application was lodged. Furthermore, the CEO is mandated to publish a notice in the Gazette, inviting submissions from any person who believes the TCO should not be granted, as per subsection 269K(1). The CEO must also ensure that the TCO does not disadvantage any person other than the Commonwealth or impose any liabilities on them concerning actions taken before the TCO’s registration.
The legislation includes provisions for offences, penalties, and consequences for breach, although specific penalties are not detailed in the provided excerpt. Generally, the Customs Act 1901 allows for enforcement actions against entities that do not comply with the requirements of TCOs or other provisions of the Act. Non-compliance could result in civil or criminal penalties, which might include fines or other legal actions depending on the severity of the breach. The exact penalties would be determined based on the specific circumstances of any non-compliance, in accordance with the broader legal framework governing the Customs Act.
The Explanatory Statement provides that TCO No. 0509830 came into force on the day the application was lodged, 22 July 2005, as per subsection 269S(1). This means that any goods imported on or after this date would benefit from the reduced or free duty rate stipulated in the TCO. The rights of importers are positively affected as they can apply for a refund of duty on goods imported since the effective date of the TCO, under paragraph 126(1)(r) of the Regulations. Importantly, the TCO does not impose any new liabilities on any person and does not affect the rights of any person other than the Commonwealth concerning actions taken before the TCO’s registration.