EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512187
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.
Australian Bale Press Company Pty Ltd applied for a TCO in respect of certain Ballistic Separators on 14 September 2005.
Instrument
TCO No 0512187 was made on 5 December 2005. It declares that those certain Ballistic Separators 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 0%.
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. 0512187 is taken to have come into force on 14 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. 0512187, enacted in 2005 under the Customs Act 1901, addresses the need for tariff concessions to encourage the importation of certain goods by providing lower rates of customs duty. This instrument was introduced to facilitate the import of goods that are not produced domestically or are not readily available in Australia, thus supporting the economic and operational needs of businesses that rely on these specific goods. The Tariff Concession Order (TCO) was made by the Chief Executive Officer of Customs, in accordance with the provisions of the Customs Act, to grant a tariff concession to the Australian Bale Press Company Pty Ltd for certain Ballistic Separators. The CEO determined that these goods qualified for a tariff concession as no substitutable goods were produced in Australia, thereby meeting the core criteria outlined in the Act. The policy objective of this instrument is to benefit importers by reducing the duty on these goods from the general rate of 5% to 0%, effective from the date the application was lodged, 14 September 2005.
Scope and Application
The Tariff Concession Instrument No. 0512187 under the Customs Act 1901 applies to the specific goods, namely certain Ballistic Separators, which are the subject of a Tariff Concession Order (TCO) application. The Act allows for the application of a lower rate of customs duty to goods specified in a TCO, provided certain criteria are met. The application for a TCO is made by a person to the Chief Executive Officer of Customs, who must determine if the application meets the core criteria, such as the absence of substitutable goods produced in Australia in the ordinary course of business. The TCO, once issued, applies to the specified goods under item 50 of Schedule 4 to the Customs Tariff Act 1995, reducing the general duty rate of 5% to 0%. The instrument is effective from the date the application was lodged, and it does not affect the rights of any person other than the Commonwealth, nor does it impose any liabilities on persons for actions taken before its registration. This TCO specifically benefits importers who can apply for a refund of duty on goods imported since the effective date of the TCO.
Key Provisions
The primary operative sections of the Customs Act 1901 (the Act) relevant to this Tariff Concession Order (TCO) are sections 269C, 269F, 269P, and 269SJ. Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO for certain goods, provided these goods are not specified in section 269SJ. The application must meet the core criteria, as outlined in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, a written order (the TCO) is issued under section 269P, specifying a lower rate of customs duty for the goods in question.
The Act imposes several obligations and requirements on the parties involved. The CEO must ensure that any application for a TCO is considered against the criteria specified in section 269C, particularly the absence of substitutable goods produced in Australia. Additionally, under subsection 269K(1), the CEO is required to publish a notice in the Gazette as soon as practicable after accepting an application as valid. This notice must invite any person who believes there are reasons why the TCO should not be made to submit their views to the CEO. In this case, the CEO did not receive any submissions in response to the published notice.
In terms of potential offences, penalties, or consequences for breach, the Act does not specify any criminal offences related directly to the making or application of a TCO. However, any failure to comply with the conditions or requirements of a TCO could potentially lead to civil consequences, such as the imposition of additional duties or fines. The specific penalties for non-compliance are not detailed within the explanatory statement, but they would be determined by the relevant provisions of the Customs Act 1901 and associated regulations. The Act ensures that the rights of individuals, other than the Commonwealth, are not adversely affected by the TCO, and it does not impose any new liabilities on any person.