EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0515682
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.
Inghams Enterprises Pty Ltd applied for a TCO in respect of certain poultry cut up lines on 08 November 2005.
Instrument
TCO No 0515682 was made on 23 January 2006. It declares that those certain poultry cut up lines 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.0515682 is taken to have come into force on 08 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 Commonwealth Parliament, facilitates the application of tariff concession orders (TCOs) for certain goods, thereby reducing the customs duty applied to them. This Act aims to address the need for tariff concessions to support businesses and importers by lowering the cost of imported goods. The instrument in question, Tariff Concession Instrument No. 0515682, was introduced to specifically address Inghams Enterprises Pty Ltd’s application for tariff concessions on certain poultry cut-up lines, effective from 8 November 2005. This concession was granted as no substitutable goods were produced in Australia at the time of application, aligning with the core criteria outlined in the Act. The instrument was published in the Gazette with an invitation for submissions, none of which were received, thus allowing the concession to proceed without opposition.
Scope and Application
The Tariff Concession Instrument No. 0515682, made under the Customs Act 1901, applies to individuals and entities that seek to import certain poultry cut-up lines, thereby seeking a tariff concession. The instrument is specifically designed to lower the customs duty on these goods from the general rate of 5% to free, provided that the application for the tariff concession meets the criteria set out in the Act. This concession is contingent upon the Chief Executive Officer of Customs being satisfied that no substitutable goods are produced in Australia. The scope of the legislation is national, operating under the Commonwealth's jurisdiction, and it directly impacts the import duties on the specified goods. There are no exclusions or exemptions outlined in this particular instrument, although the Act itself excludes certain goods from being subject to a tariff concession order. The Act's application may be further defined or extended through subordinate instruments, which are not elaborated upon in this specific context.
Key Provisions
The Customs Act 1901, specifically under Part XVA, establishes a framework for the creation of Tariff Concession Orders (TCOs). These orders allow for a reduced rate of customs duty on specified goods, provided the application for the concession meets the core criteria outlined in section 269C. This criterion is satisfied if, on the date the application is lodged, no substitutable goods are being produced in Australia in the ordinary course of business, as defined in sections 269D and 269E. Once the Chief Executive Officer (CEO) of Customs is satisfied that the application complies with these conditions, they are mandated to issue a written TCO, as stipulated in section 269P(3). This written order effectively declares that the specified goods are subject to a particular tariff item detailed in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed by the Act on the parties involved are primarily centered around the application and review processes for TCOs. The CEO must ensure that any application received is evaluated against the core criteria, and if satisfied, issue a TCO. The Act also requires the CEO to publish a notice in the Gazette inviting any interested parties to submit their views on whether the TCO should be granted. This process ensures transparency and allows for public input, although in this instance, no submissions were received. Once a TCO is issued, it takes effect from the date the application was lodged, as per subsection 269S(1). Importers of the specified goods benefit from this concession, as they can apply for a refund of the duty paid on the goods imported since the effective date of the TCO.
Failing to comply with the requirements of the Customs Act 1901 concerning TCOs may lead to various consequences. While the explanatory statement does not detail specific offences or penalties, the Act generally provides for both civil and criminal penalties for breaches of its provisions. These can include fines and imprisonment, depending on the nature and severity of the breach. The exact penalties would be determined in accordance with the broader legislative framework governing customs and excise duties in Australia. It is important for applicants and entities affected by TCOs to adhere strictly to the Act's provisions to avoid any legal repercussions.