EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512723
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.
Crown Equipment Pty Ltd applied for a TCO in respect of certain Pallet Trucks on 23 September 2005.
Instrument
TCO No 0512723 was made on 16 December 2005. It declares that those certain Pallet Trucks 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. 0512723 is taken to have come into force on 23 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 Order No. 0512723 was enacted under the Customs Act 1901, specifically addressing the need for reduced customs duties on certain imported goods that have no locally produced substitutes. This was achieved through the application process outlined in Part XVA of the Act, allowing the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) that provide a lower rate of customs duty for specified goods. Crown Equipment Pty Ltd applied for a TCO concerning certain Pallet Trucks on 23 September 2005, and the order was subsequently made on 16 December 2005. The instrument declares that these Pallet Trucks are subject to a 0% duty rate, as opposed to the general rate of 5%, reflecting the absence of substitutable goods produced in Australia. The Tariff Concession Order aims to benefit importers by potentially allowing them to apply for duty refunds on imports made since the effective date of the TCO, while ensuring no disadvantages or new liabilities are imposed on any persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0512723 under the Customs Act 1901 applies specifically to goods for which an application has been made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). The application in question pertains to certain Pallet Trucks, and the instrument was made on 16 December 2005 following a successful application by Crown Equipment Pty Ltd on 23 September 2005. The legislation targets entities seeking to import specific goods that meet the criteria for tariff concessions, which include instances where no substitutable goods are produced in Australia in the ordinary course of business. The geographic reach of this Act is national, with the TCO affecting the entire Commonwealth of Australia, including all states and territories. The Act does not apply to goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The commencement of the TCO is effective from the date the application was lodged, 23 September 2005, and it provides a zero percent duty rate for the specified goods, down from the general rate of 5 percent. The TCO does not disadvantage or impose liabilities on any person for actions taken prior to its registration and allows importers to apply for refunds of duty paid on goods imported since the effective date.
Key Provisions
The main operative sections of this legislation, specifically Tariff Concession Instrument No. 0512723, include section 269F, which allows an application for a Tariff Concession Order (TCO) to be made to the Chief Executive Officer of Customs (CEO). This application can be submitted by any person who wishes to seek a concession on the customs duty for certain goods. Under section 269C, the CEO must consider whether the application meets the core criteria, which require that no substitutable goods were produced in Australia at the time the application was lodged (section 269D and 269E). If the CEO determines that the application meets these criteria, they are required to make a written order, which is the TCO (section 269P(3)). This particular TCO, No. 0512723, was made on 16 December 2005, and it applies to certain Pallet Trucks, reducing the duty rate from 5% to 0%.
The obligations imposed by this Act on the parties involved include the requirement for the CEO to carefully assess each TCO application to ensure it meets the specified criteria. This involves verifying that no substitutable goods were produced in Australia at the time of the application and that the goods in question are not those prohibited under section 269SJ. The CEO also has an obligation to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any interested parties to lodge a submission if they believe the TCO should not be made (subsection 269K(1)). Once the TCO is made, the CEO must ensure that it comes into force on the day the application was lodged (subsection 269S(1)).
The legislation does not explicitly detail offences, penalties, or consequences for non-compliance with the TCO provisions. However, the failure to meet the core criteria or to properly process an application could lead to legal challenges or disputes regarding the validity of the TCO. Additionally, if the CEO does not adhere to the statutory requirements for publishing notices and considering submissions, this could result in procedural challenges to the TCO's validity. While specific penalties are not stated in the text, any procedural missteps could potentially lead to judicial review or other legal remedies being sought by affected parties.