EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512719
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.
Visy Packaging Pty Ltd applied for a TCO in respect of certain coil form, tin plated, flat rolled steel on 22 September 2005.
Instrument
TCO No 0512719 was made on 16 December 2005. It declares that the certain coil form, tin plated, flat rolled steel is a product 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.0512719 is taken to have come into force on 22 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. 0512719, enacted in 2005, addresses the need to provide tariff concessions for certain imported goods to support specific industries and economic activities in Australia. This instrument was created under the authority of the Customs Act 1901, administered by the Australian Parliament. The primary objective is to offer a lower rate of customs duty on specified goods by applying Tariff Concession Orders (TCOs) when certain conditions are met. This legislative measure ensures that industries can access necessary materials at reduced costs, fostering economic growth and competitiveness without imposing undue burdens on the Commonwealth or existing stakeholders. The instrument is designed to benefit importers by allowing them to seek duty refunds for goods imported since the TCO took effect, thereby encouraging trade and investment.
Scope and Application
The Tariff Concession Instrument No. 0512719 under the Customs Act 1901 applies to the specific goods identified in the instrument, namely certain coil form, tin-plated, flat-rolled steel, and it is relevant to the industries that import or use these goods. The Act allows for tariff concessions to be applied to goods where no substitutable goods are produced in Australia in the ordinary course of business. The geographic reach of this legislation is nationwide, as it pertains to the Commonwealth of Australia and its customs duties. The application of this Act is not restricted by state or territory boundaries but is a matter of federal regulation. The stated exclusions involve goods specified in section 269SJ of the Act, which cannot be subject to a Tariff Concession Order (TCO). The Act may extend or restrict application through subordinate instruments, which would provide further detail on the specific criteria and procedures for applications and concessions.
Key Provisions
The Tariff Concession Instrument No. 0512719 under the Customs Act 1901 (the Act) applies a lower rate of customs duty to certain coil form, tin plated, flat rolled steel. This is achieved through a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs (the CEO) (section 269P(3)). The TCO declares that these goods are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with the general rate of duty being 5%, but the rate for these goods is free (section 269P(3)).
The Act imposes several obligations on the CEO when considering a TCO application. First, the CEO must determine if the application is valid and not in respect of goods specified in section 269SJ of the Act (section 269F). Second, the CEO must ensure that no substitutable goods were produced in Australia on the day the application was lodged, as per section 269C. The definitions of 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269D, 269E, and 269B, respectively. Upon satisfying these core criteria, the CEO must issue a written TCO (section 269P(3)).
To facilitate transparency and stakeholder engagement, subsection 269K(1) of the Act mandates that the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made. In this case, no submissions were received in response to the published notice. The TCO is effective from the date the application was lodged (subsection 269S(1)), in this instance, 22 September 2005. Importantly, the TCO does not disadvantage any person other than the Commonwealth or impose any liabilities on any person in respect of actions taken before the TCO's registration (subsection 269S(1)). Importers of these goods will benefit from the lower duty rate and can apply for a refund of duty on goods imported since the TCO came into force (paragraph 126(1)(r) of the Regulations).
There are no specific offences, penalties, or civil/criminal consequences mentioned in the explanatory statement for breaches of the TCO or the Act’s provisions in this context. However, general provisions within the Customs Act and Customs Tariff Act may apply, including potential penalties for fraud, misrepresentation, or non-compliance with customs regulations. These penalties can vary widely depending on the nature and severity of the breach, but they may include fines or imprisonment.