EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0511964
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.
Bluescope Steel (AIS) Pty Ltd applied for a TCO in respect of walking beam furnace air dilution fans on 8 September 2005.
Instrument
TCO No 0511964 was made on 25 November 2005. It declares that those certain walking beam furnace air dilution fans 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.0511964 is taken to have come into force on 8 September 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. 0511964 was enacted in 2005 under the Customs Act 1901 to address the need for concessional tariffs for certain imported goods where no suitable domestic alternatives exist. This instrument facilitates tariff reductions for specified goods, in this instance, walking beam furnace air dilution fans, thereby promoting the economic efficiency of importing these goods rather than producing them domestically. The instrument was introduced to ensure that Australian industries can remain competitive by accessing necessary imported goods at a reduced tariff rate, provided that no substitutable goods are being produced in Australia. The instrument was made by the Chief Executive Officer of Customs, in line with the Act’s provisions, and does not disadvantage any person other than the Commonwealth, ensuring that the rights of importers are preserved.
Scope and Application
The Tariff Concession Instrument No. 0511964, under the Customs Act 1901, applies to the goods specifically mentioned in the instrument, which in this case are walking beam furnace air dilution fans. The Act facilitates the application process for tariff concessions through the Chief Executive Officer of Customs, who must determine if the application meets the core criteria specified in the legislation, particularly that no substitutable goods are produced in Australia. This instrument is applicable to the Commonwealth jurisdiction and affects entities involved in the importation of the specified goods, allowing them to benefit from a lower or free rate of customs duty. The instrument does not affect any pre-existing rights or impose new liabilities on individuals or entities other than the Commonwealth. Any person can lodge a submission if they believe the tariff concession should not be made, although in this instance, no such submissions were received.
The geographic reach of this Act is national, with the tariff concessions applying across Australia. The instrument extends its application through the subordinate Customs Tariff Act 1995, which specifies the prescribed item of Schedule 4 to which the goods are subject. The instrument does not create any exclusions or exemptions beyond those already outlined in the primary Act. The Tariff Concession Instrument No. 0511964 came into force on the date the application was lodged, which is 8 September 2005, and does not retroactively affect any duties or liabilities incurred prior to that date. This legislative approach ensures that the rights of importers are preserved and potentially enhanced, providing a clear and timely mechanism for tariff concessions in line with the statutory framework.
Key Provisions
The key operative sections of the Tariff Concession Instrument No. 0511964 under the Customs Act 1901 (section 269C, 269P(3)) establish the conditions and process for the granting of Tariff Concession Orders (TCOs). These sections detail the criteria that must be met for a TCO to be considered, including the requirement that no substitutable goods are produced in Australia at the time of the application. If the Chief Executive Officer of Customs (CEO) determines that these criteria are met, they must issue a written order, the TCO, specifying the applicable tariff concession (section 269P(3)).
The obligations imposed by the Act on parties include the requirement for applicants to submit an application to the CEO, providing sufficient information to meet the core criteria outlined in section 269C. The CEO must then assess the application against these criteria and determine whether to grant the TCO (section 269P(3)). Additionally, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections or submissions against the proposed TCO (section 269K(1)). Once a TCO is granted, it is taken to have come into force on the date the application was lodged (section 269S(1)).
Breach of the obligations or conditions specified in the TCO could lead to various civil or criminal consequences. For instance, if an applicant knowingly provides false information in their application, this could constitute an offence under the Customs Act 1901. Penalties for such offences may include fines and, in severe cases, imprisonment. Furthermore, failure to comply with the terms of the TCO once granted could result in the revocation of the concession or other administrative penalties as deemed appropriate by the CEO. It is essential for all parties to adhere strictly to the conditions and obligations set out in the TCO to avoid any legal repercussions.