EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0510722
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 precipitation and mixed hydroxide filtration and handling plant on 15 August 2005.
Instrument
TCO No 0510722 was made on 04 November 2005. It declares that those certain precipitation and mixed hydroxide filtration and handling 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. 0510722 is taken to have come into force on 15 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. 0510722 was enacted in 2005 under the Customs Act 1901. This legislation was introduced to address the issue of providing tariff concessions on specific goods, particularly in cases where such goods are not produced domestically, thereby ensuring that Australian industries are not unduly disadvantaged by customs duties. The instrument was created in response to an application by Ravensthorpe Nickel Operations Pty Ltd for a Tariff Concession Order (TCO) concerning certain precipitation and mixed hydroxide filtration and handling plant. The primary objective of the Act, as stated in the explanatory statement, is to facilitate the reduction of customs duties on goods that are not domestically produced, thus encouraging the importation of these goods and supporting economic activities that may otherwise be hindered by high customs tariffs.
The instrument was developed by the Chief Executive Officer of Customs (CEO) in accordance with section 269F of the Customs Act 1901, which mandates that a TCO may be granted if the CEO determines that the application meets the core criteria, specifically that no substitutable goods are produced in Australia. In this case, the CEO determined that the application for the specified plant met these criteria, resulting in the issuance of TCO No. 0510722. This order, which came into force on the date of application (15 August 2005), exempts the specified plant from the general customs duty rate of 5%, effectively imposing a rate of zero duty on these imports. The CEO published a notice in the Gazette inviting public submissions, but none were received.
Scope and Application
The Tariff Concession Instrument No. 0510722, made under the Customs Act 1901, applies to the specific goods outlined in the Instrument, namely certain precipitation and mixed hydroxide filtration and handling plants, which are the subject of an application by Ravensthorpe Nickel Operations Pty Ltd. This legislation pertains to entities involved in the importation of these goods, aiming to provide them with a lower rate of customs duty, specifically granting them tariff concessions. The scope of the Act extends to facilitating the importation process for these particular goods by reducing the duty from the general rate of 5% to zero, provided that the goods meet the specified criteria and are not produced domestically in an ordinary course of business. This Instrument is effective within the Commonwealth of Australia, governed by the Customs Act 1901 and the Customs Tariff Act 1995. The legislation does not impose any liabilities on persons other than the Commonwealth and does not disadvantage any person’s rights as they stood on the date of the Instrument's registration. Importers can benefit from this concession by applying for a refund of any duty paid on these goods since the Instrument’s effective date.
Key Provisions
The primary sections of this legislation include sections 269F, 269C, 269B, 269D, 269E, 269P(3), and 269K(1) of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods. The CEO must assess the application against the core criteria outlined in sections 269C and 269B, which require that no substitutable goods were produced in Australia on the day the application was lodged. If the CEO is satisfied that the application meets the core criteria, they must make a written order under section 269P(3), declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, resulting in a specified rate of duty. Section 269K(1) mandates that the CEO must publish a notice in the Gazette, inviting submissions from any person who believes the TCO should not be made.
The Act imposes several obligations on the parties involved. The CEO must ensure that applications for TCOs are assessed against the core criteria, which include verifying that no substitutable goods were produced in Australia. The CEO must also publish a notice in the Gazette inviting submissions on the application. Applicants for TCOs must provide sufficient information to enable the CEO to determine whether the core criteria are met. Additionally, importers of goods subject to a TCO can apply for a refund of duty under paragraph 126(1)(r) of the Regulations.
Breach of the provisions of the Customs Act 1901 can lead to various civil and criminal consequences. While the specific penalties are not detailed in the provided text, breaches of customs legislation generally attract significant penalties under Australian law. For instance, knowingly making a false statement or representation to the CEO can result in fines or imprisonment. The maximum penalties for such offences can be substantial, depending on the severity and intent of the breach.
The Tariff Concession Order No. 0510722, which declares that certain precipitation and mixed hydroxide filtration and handling plants are subject to a free rate of duty, came into force on 15 August 2005. This order benefits importers by allowing them to apply for a refund of duty on goods imported since the TCO was taken to have come into force. Importantly, the TCO does not impose any liabilities on any person and does not affect the rights of any person as at the date of registration.