EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512937
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.
APV Australia Pty Ltd applied for a TCO in respect of certain butter makers on 24 October 2005.
Instrument
TCO No 0512937 was made on 23 December 2005. It declares that those certain butter makers 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. 0512937 is taken to have come into force on 24 October 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. 0512937, enacted in 2005, is a legislative measure under the Customs Act 1901, designed to provide tariff concessions on specific imported goods. This instrument was introduced to address the issue of granting tariff concessions for goods that do not have Australian-produced substitutes. The instrument was enacted by the Commonwealth Parliament and aims to facilitate trade by reducing customs duties on certain goods, thereby making them more competitively priced in the Australian market. APV Australia Pty Ltd applied for a tariff concession for certain butter makers, and after assessment, the Chief Executive Officer of Customs determined that no substitutable goods were produced in Australia, thus meeting the core criteria set out in the Act. As a result, the tariff on these butter makers was set to free, effective from the date of the application, 24 October 2005. This legislative action ensures that importers of such goods can apply for a refund of duties paid on imports since the effective date, without any retroactive imposition of liabilities.
Scope and Application
The Tariff Concession Instrument No. 0512937 applies to the specified butter makers for which APV Australia Pty Ltd submitted an application under section 269F of the Customs Act 1901. This Act applies to any individual or entity that seeks to import goods eligible for tariff concessions. The instrument pertains to goods that are subject to the Customs Tariff Act 1995, specifically those that can benefit from reduced customs duty rates when no substitutable goods are produced in Australia. This applies nationally across the Commonwealth of Australia, as the Customs Act 1901 has a federal scope. The instrument does not impose any disadvantages or liabilities on individuals or entities, except for the Commonwealth, concerning actions taken before the instrument's effective date. Exclusions apply to goods listed in section 269SJ of the Customs Act 1901, which cannot be subject to a Tariff Concession Order. The instrument's application can be further defined or modified through subordinate instruments as required.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0512937 under the Customs Act 1901 (section 269F) allow for the application of tariff concessions on certain goods, specifically butter makers in this instance. If the Chief Executive Officer of Customs (CEO) is satisfied that the application meets the core criteria, such as the absence of substitutable goods produced in Australia (section 269C), a Tariff Concession Order (TCO) is issued. This order declares that the goods in question are subject to a specific tariff item, in this case, item 50 of Schedule 4 to the Customs Tariff Act 1995, with the duty rate set at free, down from the general rate of 5% (section 269P(3)).
The Act imposes several obligations on the parties involved. For example, any person wishing to apply for a tariff concession must ensure their application is not for goods specified in section 269SJ, which lists those ineligible for such concessions. The CEO is required to publish a notice in the Gazette inviting submissions from any interested parties, although in this case, no submissions were received (subsection 269K(1)). Additionally, the CEO must assess whether the core criteria are met, which includes verifying that no substitutable goods were produced in Australia on the day the application was lodged (section 269C).
In terms of breaches and penalties, the Act does not explicitly state any offences or penalties for non-compliance with the TCO provisions. However, any failure to adhere to the conditions set out in a TCO could potentially lead to legal consequences under other relevant sections of the Customs Act 1901 or other applicable legislation. For instance, incorrect declarations or fraudulent claims could attract penalties under sections related to false statements or misrepresentations in customs matters, which may include fines or imprisonment. However, the specific penalties would depend on the nature and severity of the breach.