EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0510608
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.
Orica Australia Pty Ltd applied for a TCO in respect of a certain flotation reagent on 11 August 2005.
Instrument
TCO No 0510608 was made on 28 October 2005. It declares that those certain flotation reagents 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. 0510608 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 Tariff Concession Instrument No. 0510608, enacted in 2005, amends the Customs Act 1901 to provide tariff concessions for certain flotation reagents used in the mining industry. This legislation was introduced to address the economic impact of high customs duties on specific industrial inputs, aiming to support Australian businesses by reducing the cost of importing necessary goods. The instrument was enacted by the Parliament of Australia, with the policy objective of fostering a competitive business environment by ensuring that Australian industries can access essential materials at a reduced cost. The instrument allows for a lower rate of customs duty, or in some cases, a complete waiver of duty, for specified goods when certain conditions are met, thereby promoting efficiency and cost-effectiveness within the industry.
Scope and Application
The Tariff Concession Instrument No. 0510608, under the Customs Act 1901, applies to the specific flotation reagents for which Orica Australia Pty Ltd submitted an application on 11 August 2005. This instrument pertains to the customs duty concessions available for these goods, specifically reducing the general duty rate of 5% to free, provided that no substitutable goods are produced in Australia. The Act mandates that the Chief Executive Officer of Customs (CEO) must assess whether the application meets the core criteria, which includes verifying that no substitutable goods are produced in Australia in the ordinary course of business. Upon meeting these criteria, the CEO is obligated to issue a Tariff Concession Order (TCO) as specified in the instrument. The application of this TCO benefits the importers of the affected goods by allowing them to apply for a refund of duty on imports since the effective date of the TCO, which is the day the application was lodged. The instrument does not disadvantage any person other than the Commonwealth and imposes no new liabilities on anyone.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0510608 include section 269C (subsection 269P(3)), which outlines the core criteria that must be met for a Tariff Concession Order (TCO) to be made. If the Chief Executive Officer of Customs (CEO) is satisfied that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, the CEO must make a written order declaring that the goods in question are subject to the TCO (section 269P(3)). This instrument also references the definitions provided in sections 269D and 269E, which clarify what is meant by 'goods produced in Australia' and 'ordinary course of business'. Additionally, the commencement date of the TCO is specified under section 269S(1), which indicates that the TCO is effective from the date the application was lodged.
Under this legislation, the CEO has the obligation to assess TCO applications against the criteria set out in section 269C. If the CEO determines that the application meets the core criteria, they are required to publish a notice in the Gazette inviting submissions from any interested parties who may object to the TCO. The CEO must also ensure that the TCO does not adversely affect the rights of any person other than the Commonwealth, as stipulated in section 269S(1). Furthermore, the CEO must consider the potential impact on importers, who may benefit from a refund of duty on goods imported since the TCO's effective date, as outlined in the Customs (Tariff) Regulations 1997.
The legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches within the Tariff Concession Instrument itself. However, it is important to note that any failure to comply with the provisions of the Customs Act 1901 or the Customs (Tariff) Regulations 1997 could result in enforcement actions under those acts. These could include fines, penalties, or other legal consequences as provided for in the broader framework of the Customs Act and associated regulations. The specific penalties would depend on the nature and severity of the breach and would be determined in accordance with the relevant sections of the Customs Act 1901.