EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512264
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.
Wilson Transformer Company Pty Ltd applied for a TCO in respect of certain Copper Strip on 16 September 2005.
Instrument
TCO No 0512264 was made on 5 December 2005. It declares that those certain Copper Strip 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. 0512264 is taken to have come into force on 16 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. 0512264 was enacted in 2005 as part of the Customs Act 1901, aiming to address the need for streamlined processes in granting tariff concessions for specific goods imported into Australia. The Act empowers the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that apply lower rates of customs duty to certain goods. The explanatory statement outlines the application process, where an applicant such as Wilson Transformer Company Pty Ltd can apply for a TCO for goods like Copper Strip, provided they meet the core criteria set out in the Act. The primary objective of this legislation, as stated in the explanatory statement, is to facilitate tariff concessions for goods where no substitutable products are produced domestically, thereby supporting importers by potentially reducing their customs duties and enabling them to apply for duty refunds. The instrument was introduced by the relevant legislature and the policy objective is to provide a clear and efficient mechanism for tariff reductions where appropriate.
Scope and Application
The Tariff Concession Order No. 0512264, established under Part XVA of the Customs Act 1901, pertains to specific Copper Strip goods. It applies to entities, including the Wilson Transformer Company Pty Ltd, that have applied for and received a Tariff Concession Order from the Chief Executive Officer of Customs. The application of this particular order was predicated on the absence of substitutable goods produced in Australia, as defined under the Act, thereby meeting the core criteria for tariff concessions. The geographic reach of this legislation is national, encompassing all areas under Australian jurisdiction. However, it excludes certain goods specified in section 269SJ of the Act, which cannot be subject to a Tariff Concession Order. The order came into effect on 16 September 2005, the date the application was lodged, and does not affect the rights of any person, except to the benefit of importers who can now apply for duty refunds on the specified goods imported since this date. The order does not impose any liabilities on any person.
Key Provisions
The Tariff Concession Order No. 0512264, issued under the Customs Act 1901 (the Act), outlines the specific provisions for a tariff concession in respect of certain Copper Strip (section 269P(3)). The order, which was made on 5 December 2005, specifies that these particular Copper Strip are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) and that the applicable duty rate for these goods is 0%, as opposed to the general rate of 5% (section 269P(3)). This concession is contingent upon the Chief Executive Officer of Customs (the CEO) being satisfied that no substitutable goods were produced in Australia on the date the application was lodged (section 269C).
The obligations imposed by the Act on the parties involved are quite specific. Firstly, any person seeking a tariff concession must apply to the CEO in accordance with section 269F. The CEO is then required to determine if the application meets the core criteria outlined in section 269C, which stipulates that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. If the application satisfies these criteria, the CEO must make a written order specifying the tariff concession, as mandated by section 269P(3). Additionally, section 269K(1) requires the CEO to publish a notice in the Gazette, inviting any interested parties to lodge submissions if they believe the TCO should not be made.
In terms of the consequences for non-compliance, the Act does not explicitly detail specific criminal or civil penalties for breach of the tariff concession provisions. However, the general principles of administrative law and the specific regulations governing customs and tariffs could impose penalties for non-compliance. For instance, incorrect claims for tariff concessions could potentially lead to financial penalties or other administrative actions. Furthermore, any misleading or deceptive conduct in relation to tariff concessions might also attract penalties under consumer protection laws.
The commencement of the TCO is governed by section 269S(1), which stipulates that the order comes into force on the day the application for the TCO was lodged, in this case, 16 September 2005. It is also important to note that the TCO does not affect the rights of any person (other than the Commonwealth) as at the date of registration, so as to disadvantage that person or impose liabilities in respect of anything done or omitted before the date of registration (section 269S(2)). This ensures that the rights of importers will be beneficially affected, and under paragraph 126(1)(r) of the Regulations, importers can apply for a refund of duty on goods imported since the day the TCO came into force.
In conclusion, the Tariff Concession Order No. 0512264 under the Customs Act 1901 provides a tariff concession for certain Copper Strip, subject to specific criteria and obligations. The CEO must ensure that the application meets the core criteria before issuing the TCO, and any interested parties have the opportunity to lodge submissions. While the Act does not explicitly detail specific penalties for breach, non-compliance could lead to administrative penalties or other legal consequences. The TCO comes into force on the date the application was lodged and does not impose any liabilities on any person.