EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0511034
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 certain limestone crushing and handling plants on 19 August 2005.
Instrument
TCO No 0511034 was made on 11 November 2005. It declares that those certain limestone crushing 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. 0511034 is taken to have come into force on 19 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, as amended by the Tariff Concession Instrument No. 0511034 enacted in 2005, addresses the problem of ensuring that Australian businesses are not unduly disadvantaged by high customs duties on imported goods for which no suitable domestic alternatives exist. This legislation allows for the application of tariff concessions on specific goods, enabling businesses to import certain items at a reduced or free rate of duty. The instrument was introduced by the Commonwealth Parliament and aims to provide economic relief and competitive advantages to Australian industries by reducing the cost of imported goods that are not produced domestically. The policy objective is to support local industries by ensuring that they are not put at a disadvantage due to the absence of domestic production of certain goods, thereby fostering a fair and competitive marketplace.
Scope and Application
The Tariff Concession Instrument No. 0511034 under the Customs Act 1901 applies to the specific goods, namely certain limestone crushing and handling plants, as applied for by Ravensthorpe Nickel Operations Pty Ltd. The instrument is made pursuant to section 269F of the Customs Act 1901, which allows for Tariff Concession Orders (TCOs) to be issued by the Chief Executive Officer of Customs (CEO) when certain criteria are met. These criteria primarily concern the non-production of substitutable goods in Australia on the date the application was lodged, as outlined in sections 269C and 269D of the Act. The TCO provides a concession by reducing the customs duty on these specified goods from the general rate of 5% to free, provided the CEO is satisfied that no substitutable goods were produced in Australia. The instrument is effective from 19 August 2005, the date on which the application was lodged, and it does not affect any rights or impose liabilities on any person other than the Commonwealth. The CEO published a notice in the Gazette inviting submissions against the TCO, but none were received.
Key Provisions
The primary operative sections of this legislation, specifically sections 269C, 269B, and 269P, establish the criteria for the Chief Executive Officer (CEO) of Customs to assess when making a Tariff Concession Order (TCO). Section 269C stipulates that a TCO application meets the core criteria if, on the application date, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B provides definitions for key terms, such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods'. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, they must issue a written order (TCO) declaring the goods subject to a specified rate in the Customs Tariff Act 1995.
The Act imposes several obligations on the CEO, including the requirement to assess whether a TCO application meets the core criteria as outlined in section 269C. The CEO must also publish a notice in the Gazette, inviting submissions from any person who believes there are reasons why the TCO should not be made, as per section 269K(1). Additionally, the CEO must ensure that the TCO does not disadvantage any person or impose liabilities on any person in respect of anything done or omitted to be done before the date of registration, as per subsection 269S(1).
The legislation does not explicitly state any specific offences, penalties, or consequences for breach within the provided text. However, it does outline that the TCO does not impose any liabilities on any person, and importers of goods affected by the TCO can apply for a refund of duty under paragraph 126(1)(r) of the Regulations. It is important to note that any breach of the terms of the TCO or related regulations could potentially lead to civil or criminal consequences under other applicable laws, though these are not specified in this particular legislation.