EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0510585
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.
Ravensthorpe Nickel Operations Pty Ltd applied for a TCO in respect of a certain ore crushing plant on 11 August 2005.
Instrument
TCO No 0510585 was made on 04 November 2005. It declares that those certain ore crushing plants 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. 0510585 is taken to have come into force on 11 August 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 Australian Parliament, provides a framework for the regulation of customs and excise duties, including provisions for Tariff Concession Orders (TCOs) to reduce customs duty on certain goods. The Tariff Concession Instrument No. 0510585, made on 4 November 2005, addresses the specific issue of applying tariff concessions to certain ore crushing plants. This instrument was introduced to provide tariff relief to Ravensthorpe Nickel Operations Pty Ltd, ensuring that no substitutable goods were produced in Australia at the time of the application, thus meeting the core criteria stipulated in the Act. The policy objective of this measure is to facilitate the importation of these specific goods by reducing the duty from the general rate of 5% to free, thereby supporting the operations of the applicant without imposing any liabilities on other persons or disadvantaging existing rights.
Scope and Application
The Tariff Concession Instrument No. 0510585, enacted under the Customs Act 1901, applies specifically to certain ore crushing plants as designated by Ravensthorpe Nickel Operations Pty Ltd. This instrument allows for the application of a lower rate of customs duty, in this case, free duty, for the specified goods. The application of this tariff concession is contingent upon the Chief Executive Officer of Customs determining that no substitutable goods are produced in Australia. This determination is made in accordance with the core criteria outlined in section 269C of the Act, which stipulates that no substitutable goods must be produced in Australia in the ordinary course of business on the day the application was lodged. The instrument extends its benefits to importers of the designated goods, allowing them to apply for a refund of duty on goods imported since the effective date of the tariff concession. The scope of the Act is limited to the specific goods mentioned in the instrument and does not affect the rights of any person other than the Commonwealth or impose any liabilities on any person. The application of this Act is governed by the Customs Act 1901 and is subject to the terms and conditions specified within the Act and any subordinate instruments that may further define the scope and application of the tariff concession.
Key Provisions
The Tariff Concession Instrument No. 0510585 under the Customs Act 1901 introduces a tariff concession order (TCO) for specific ore crushing plants, granting them a duty-free status under item 50 of Schedule 4 to the Customs Tariff Act 1995. This concession is contingent upon the Chief Executive Officer of Customs (CEO) determining that no substitutable goods were produced in Australia on the date the application was lodged, as outlined in sections 269C and 269D of the Customs Act 1901. The CEO must also ensure that the application does not pertain to goods specified in section 269SJ of the Act, which lists those that cannot be subject to a TCO. Upon satisfying these criteria, the CEO is mandated by section 269P(3) of the Act to issue a written order, which is the TCO, specifying that the particular goods are subject to the prescribed tariff item.
The obligations imposed by this Act on parties include the requirement for the CEO to promptly publish a notice in the Gazette once an application is accepted as valid, as per subsection 269K(1) of the Act. This notice must invite any interested parties to lodge submissions if they believe the TCO should not be made. Furthermore, section 269S(1) of the Act stipulates that the TCO is considered to have come into force on the date the application for the TCO was lodged. In this case, TCO No. 0510585 is effective from 11 August 2005. Importantly, the TCO does not adversely affect the rights of any person, except the Commonwealth, as of the registration date, nor does it impose liabilities on anyone in relation to actions taken before the registration date.
In terms of penalties and consequences, the Act does not specify particular offences or penalties related to the issuance or application of a TCO. However, any breach of the conditions set by the TCO could potentially lead to legal repercussions under the broader customs legislation, which may include fines and other penalties. For instance, if a party fails to comply with the terms of the TCO, they might face civil or criminal charges under the Customs Act 1901, depending on the nature and severity of the breach. The maximum penalties for breaches of customs regulations can include substantial fines and, in some cases, imprisonment. The exact penalties would be determined by the courts based on the specific circumstances of the case.