EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512189
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.
S K M Recycling Pty Ltd applied for a TCO in respect of certain glass sorters and/or separators on 14 September 2005.
Instrument
TCO No 0512189 was made on 25 November 2005. It declares that those certain glass sorters and/or 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 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. 0512189 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. 0512189, enacted in 2005, was introduced under the Customs Act 1901 to provide relief on customs duties for certain glass sorters and/or separators, as applied for by S K M Recycling Pty Ltd. The Customs Act 1901, managed by the Australian Parliament, facilitates a scheme where Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO) to lower customs duty rates on specified goods, provided they meet the core criteria set out in the Act, such as the absence of substitutable goods produced in Australia. The objective of this particular TCO was to grant a tariff concession, thereby setting the duty rate for the specified glass sorters and/or separators at free, down from the general rate of 5%. This concession took effect from the date the application was lodged, 14 September 2005, without any adverse impact on the rights of individuals or entities, except for potentially beneficial effects on importers eligible for duty refunds.
Scope and Application
The Customs Act 1901, specifically under Part XVA, outlines the framework for Tariff Concession Orders (TCOs), which are instruments made by the Chief Executive Officer of Customs (CEO). These orders are designed to apply a lower rate of customs duty to certain goods, provided they meet specific criteria. The Act applies to individuals or entities that seek to import goods that qualify for tariff concessions, with the CEO being the authority that decides on the eligibility of such goods for a TCO. The Act’s jurisdictional reach is national, as it is a Commonwealth statute, and it applies across Australia. There are exclusions, particularly concerning goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The CEO is mandated to make a TCO if the application meets the core criteria, as outlined in sections 269C and 269P(3). The application process requires public consultation, whereby the CEO must invite submissions after accepting an application as valid. For TCO No. 0512189, the CEO did not receive any submissions opposing the concession. The TCO does not retroactively affect the rights of any person other than the Commonwealth and does not impose any liabilities on persons other than the Commonwealth.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0512189 under the Customs Act 1901 (section 269F) allow for the application of tariff concessions to certain goods, which in this case are glass sorters and/or separators. If the Chief Executive Officer of Customs (CEO) is satisfied that the application meets the core criteria (section 269C), they are required to make a written order declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. This particular instrument (section 269P(3)) was made on 25 November 2005 and specifies that the glass sorters and/or separators in question are subject to item 50 of Schedule 4, which changes the rate of duty from the general 5% to free.
The Act imposes several obligations and requirements on the parties involved. The CEO must ensure that the application is not in respect of goods specified in section 269SJ of the Act, which lists those goods that cannot be subject to a TCO. Furthermore, the CEO must decide if the application meets the core criteria by verifying that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). In this case, the CEO was satisfied that no substitutable goods were produced, and thus the application met the criteria for a TCO. Additionally, under subsection 269K(1), the CEO must publish a notice in the Gazette inviting any interested party to lodge submissions regarding the TCO. In this instance, no submissions were received.
Any breach of the requirements set out in the Customs Act 1901 could result in civil or criminal consequences. While the explanatory statement does not explicitly state penalties, it is likely that breaches could result in fines or imprisonment, depending on the severity and intent behind the breach. The specific penalties would be determined under the broader Customs Act 1901 and any relevant regulations, which may include the Customs Regulations 1993. The Customs Act 1901 also provides for penalties for fraudulent or dishonest behaviour, which could include substantial fines or imprisonment. The potential consequences underscore the importance of compliance with the Act's provisions and the obligations imposed on the CEO and applicants.