EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0515317
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 02 November 2005.
Instrument
TCO No 0515317 was made on 23 January 2006. 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 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. 0515317 is taken to have come into force on 02 November 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 Customs Act 1901, enacted by the Parliament of Australia, provides a framework for the regulation of imports and exports, including the imposition of customs duty. The Customs Act 1901 was amended to introduce the scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs, addressing the gap in facilitating tariff concessions for certain goods. This scheme aims to provide relief to importers by reducing or eliminating customs duty on specified goods, thereby encouraging trade and benefiting the economy. The specific Tariff Concession Instrument No. 0515317 was introduced to provide a tariff concession for certain pallet trucks, reducing the duty rate from 5% to free, thereby promoting the import of these goods into Australia without financial barriers.
Scope and Application
The Tariff Concession Instrument No. 0515317 under the Customs Act 1901 applies to any person or entity seeking to import specific goods, namely certain pallet trucks, into Australia and benefit from a tariff concession. The instrument pertains to the application and issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) for goods that meet the core criteria specified in section 269C of the Act, which involves ensuring that no substitutable goods are produced in Australia in the ordinary course of business. This instrument has a national jurisdictional reach, as it is part of the Commonwealth's legislative framework. Notably, the Act excludes certain goods from being subject to a TCO, as delineated in section 269SJ, and the CEO is mandated to consider public submissions, although in this instance, no submissions were received. The instrument's commencement is effective from the date the application was lodged, providing immediate benefits to importers who can apply for a refund of duty on goods imported since this date. The TCO does not disadvantage any existing rights or impose liabilities on any person other than the Commonwealth.
Key Provisions
The Tariff Concession Instrument No. 0515317, made under the Customs Act 1901, provides a tariff concession for certain pallet trucks. This instrument declares that the pallet trucks in question are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a rate of duty that is free of charge, as opposed to the general rate of 5% (section 269P(3)). The CEO of Customs was satisfied that no substitutable goods were produced in Australia, fulfilling the core criteria for the concession (section 269C). The concession is effective as of the date the application was lodged, 2 November 2005 (subsection 269S(1)).
The Act imposes specific obligations on the CEO of Customs when considering an application for a Tariff Concession Order (TCO). Upon receiving an application, the CEO must first ensure it does not pertain to goods specified in section 269SJ, which are ineligible for TCOs. If the application is valid, the CEO must then determine if it meets the core criteria by verifying that no substitutable goods were produced in Australia at the time of application (section 269C). Should the CEO find that the application meets these criteria, a written TCO must be issued (section 269P(3)). The CEO is also required to publish a notice in the Gazette, inviting any interested parties to submit objections to the TCO (subsection 269K(1)). In this instance, no submissions were received.
Failure to comply with the requirements of the Customs Act 1901 can result in various consequences. The Act does not specify offences or penalties for breaches directly related to TCOs, but general provisions under the Customs Act and associated regulations may apply. For instance, providing false information in an application could potentially lead to penalties under sections related to misleading or deceptive conduct or other relevant sections of the Customs Act. The maximum penalties for such offences can vary significantly depending on the severity and nature of the breach.
The TCO does not affect the rights of any person except the Commonwealth as at the date of registration, ensuring that no individual or entity is disadvantaged or incurs liabilities for actions taken prior to the TCO's effective date (subsection 269S(1)). Importers of the specified goods may apply for a refund of duty paid on those goods since the TCO's effective date, as outlined in paragraph 126(1)(r) of the Regulations. Importantly, the TCO does not impose any new liabilities on any person, maintaining the integrity and fairness of the legislative framework.