EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512265
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.
Cut-To-Size Plastics Pty Ltd applied for a TCO in respect of certain polyamide polyacetal rods on 19 September 2005.
Instrument
TCO No 0512265 was made on 25 November 2005. It declares that those certain polyamide polyacetal rods 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. 0512265 is taken to have come into force on 19 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. 0512265, enacted under the Customs Act 1901, addresses the problem of ensuring that Australian industries remain competitive by allowing tariff concessions on certain imported goods that do not have local substitutes. This instrument was introduced to provide relief to businesses that rely on imported goods not produced domestically. The Customs Act 1901 empowers the Chief Executive Officer of Customs to make Tariff Concession Orders, which apply lower customs duties to specified goods if no substitutable goods are produced in Australia. The policy objective is to facilitate trade by reducing the cost of importing certain goods, thereby supporting economic activities that depend on these imports. The instrument was enacted by the Australian Government, ensuring that the concessions do not adversely affect the rights of any party prior to its registration.
Scope and Application
The Tariff Concession Instrument No. 0512265, made under the Customs Act 1901, applies to any person or entity that seeks a tariff concession order (TCO) for goods imported into Australia. Specifically, this instrument was created in response to an application by Cut-To-Size Plastics Pty Ltd for a TCO concerning certain polyamide polyacetal rods. The instrument declares that these particular rods are subject to a free rate of duty, contrasting with the general rate of 5% applicable to similar goods, provided that no substitutable goods are produced in Australia. This concession is effective from the date of the application, 19 September 2005. The instrument’s scope is limited to the goods specified in the application and does not affect the rights of any person other than the Commonwealth, particularly ensuring that no existing liabilities are imposed. The instrument operates nationally within the Commonwealth of Australia, and its application is restricted to the specific goods mentioned, with exclusions based on the criteria set out in the Customs Act 1901 and related regulations.
Key Provisions
The primary sections of this Tariff Concession Instrument No. 0512265, under the Customs Act 1901, include sections 269C, 269B, 269D, 269E, 269F, 269P, 269K, and 269S. Section 269F (3) specifies the process by which an application for a Tariff Concession Order (TCO) can be made to the Chief Executive Officer of Customs (CEO) for goods that are not listed in section 269SJ. Section 269C outlines the core criteria that the application must meet, particularly that no substitutable goods are produced in Australia in the ordinary course of business, as defined in sections 269B, 269D, and 269E. Section 269P (3) mandates the CEO to make a written order if the core criteria are satisfied. Section 269K requires the CEO to publish a notice in the Gazette inviting submissions on the application, and section 269S stipulates that the TCO comes into force on the day the application was lodged.
This legislation imposes specific obligations on parties applying for a TCO. An applicant must ensure their application complies with the core criteria, particularly demonstrating that no substitutable goods are produced in Australia. The CEO is required to assess the application against these criteria and publish a notice in the Gazette inviting any objections. The CEO must also ensure that the TCO does not impose any liabilities on persons other than the Commonwealth and does not disadvantage them concerning actions taken before the TCO's registration date.
The Act does not explicitly outline specific offences, penalties, or consequences for breaching the terms of a TCO. However, if the CEO determines that a TCO application does not meet the core criteria or if the application is found to be misleading or fraudulent, the CEO is not obligated to make the TCO. In such cases, the applicant would need to address the deficiencies or face the denial of tariff concessions. Additionally, any misrepresentation or fraudulent activity in the application process could potentially lead to civil or criminal consequences under other relevant laws.