EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0509994
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.
Bulk Handling Australia Pty Ltd applied for a TCO in respect of certain intermediate bulk, collapsible, stackable containers on 26 July 2005.
Instrument
TCO No 0509994 was made on 07 October 2005. It declares that those certain intermediate bulk, collapsible, stackable containers 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. 0509994 is taken to have come into force on 26 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 Tariff Concession Instrument No. 0509994, enacted in 2005, is a legislative instrument under the Customs Act 1901 designed to address the issue of providing tariff concessions for specific goods not produced in Australia. This instrument was introduced by the Commonwealth Parliament to facilitate more efficient trade practices by offering lower customs duties on certain imported goods, thereby supporting Australian businesses by making imported goods more cost-competitive. The core objective, as outlined in the explanatory statement, is to ensure that the application for a Tariff Concession Order (TCO) meets the criteria that no substitutable goods are produced in Australia. The Tariff Concession Instrument No. 0509994 specifically applies to certain intermediate bulk, collapsible, stackable containers, reducing their customs duty rate from 5% to free, effective from 26 July 2005. The process involved the Chief Executive Officer of Customs accepting the application, publishing a notice in the Gazette inviting submissions, and ultimately making the order after no objections were received.
Scope and Application
The Tariff Concession Instrument No. 0509994 under the Customs Act 1901 applies to the specific goods, namely certain intermediate bulk, collapsible, stackable containers, as identified by Bulk Handling Australia Pty Ltd in their application to the Chief Executive Officer of Customs. The instrument is designed to provide tariff concessions to these goods, reducing their customs duty from the general rate of 5% to free, provided that no substitutable goods were produced in Australia on the day the application was lodged. The instrument’s scope extends to the entire Commonwealth of Australia, governed by federal law, and it does not affect the rights of any person adversely or impose any new liabilities on anyone apart from the Commonwealth. Exclusions are made for goods specified in section 269SJ of the Act, which are ineligible for tariff concessions. The application of this instrument can be extended or modified through subordinate instruments, although no such instruments are specified in the explanatory statement. The instrument commenced on 26 July 2005, the date the application was lodged, with an effective date of registration on 7 October 2005.
Key Provisions
The Tariff Concession Instrument No. 0509994, made under the Customs Act 1901, provides a lower rate of customs duty for certain intermediate bulk, collapsible, stackable containers. This was declared following an application by Bulk Handling Australia Pty Ltd and subsequent approval by the Chief Executive Officer of Customs (CEO). The instrument specifically identifies these containers as being subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, which sets the duty rate at free, down from the general rate of 5%. The instrument came into force on the date the application was lodged, 26 July 2005, as stipulated by section 269S(1) of the Act.
The obligations under this legislation are primarily centred around the process of applying for a Tariff Concession Order (TCO). According to section 269F of the Customs Act 1901, an application for a TCO can be submitted by any person to the CEO. The CEO is then required to determine whether the application meets the core criteria outlined in section 269C, which necessitates that no substitutable goods were produced in Australia on the day the application was lodged. The CEO must also ensure that the goods in question are not those specified in section 269SJ of the Act, which are ineligible for TCOs. Furthermore, the CEO must publish a notice in the Gazette, inviting any person to lodge submissions if they believe the TCO should not be granted, as per section 269K(1) of the Act.
Failure to comply with the provisions of the Customs Act 1901 and the associated regulations could result in various civil or criminal consequences. Although specific offences and penalties are not detailed in the explanatory statement, breaches of customs regulations generally attract penalties under the Customs Act 1901. These may include fines and imprisonment, with the severity of the penalty depending on the nature and extent of the breach. For instance, knowingly making a false statement in a customs document could result in a fine of up to 10,000 penalty units or imprisonment for up to five years, or both, under section 228BA of the Act. The exact penalties would be determined by the court based on the specifics of the case.