EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0515683
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 preparers on 08 November 2005.
Instrument
TCO No 0515683 was made on 23 January 2006. It declares that those certain poultry preparers 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.0515683 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 Tariff Concession Instrument No. 0515683, enacted in 2006 under the Customs Act 1901, was introduced to address the specific need for tariff concessions on certain goods, in this case, poultry preparers. The instrument was formulated to provide a lower rate of customs duty on these goods, aligning with the broader policy objective of promoting economic efficiency and supporting particular industries by reducing import costs. The instrument was developed in response to an application by Inghams Enterprises Pty Ltd, seeking a tariff concession for poultry preparers. The Customs Act 1901 empowers the Chief Executive Officer of Customs to make such orders if the application meets the core criteria, which, in this instance, was satisfied as no substitutable goods were produced in Australia. The instrument was made effective from the date of the application, ensuring that no pre-existing rights or liabilities were adversely affected, and provided a pathway for importers to claim refunds for duties paid prior to the instrument's registration.
Scope and Application
The Tariff Concession Instrument No. 0515683 under the Customs Act 1901 applies to entities or individuals who are seeking to import specific goods into Australia and are eligible for tariff concessions. This instrument is relevant to the poultry industry, particularly to those who import poultry preparers. The instrument was initiated by an application from Inghams Enterprises Pty Ltd for tariff concessions on certain poultry preparers, and it was approved by the Chief Executive Officer of Customs, provided the application met the core criteria outlined in the Customs Act. The application must ensure that no substitutable goods were produced in Australia on the day the application was lodged, and it cannot be in respect of goods specified in section 269SJ of the Act. The instrument provides that these poultry preparers are subject to a lower rate of duty, specifically free of charge, instead of the general rate of 5% as specified in the Customs Tariff Act 1995. The geographic reach of this legislation is national, as it pertains to the importation of goods into Australia and the application of customs duties accordingly. The instrument does not specify exclusions or exemptions beyond those already stipulated in the Customs Act, and its application is not restricted by any subordinate instruments beyond the requirements of the primary Act.
Key Provisions
The main operative sections of this legislation are sections 269C, 269P(3), and 269S(1) of the Customs Act 1901. Section 269C sets out the core criteria that must be satisfied for a Tariff Concession Order (TCO) to be made, which includes the absence of substitutable goods produced in Australia. Section 269P(3) requires the Chief Executive Officer (CEO) of Customs to make a TCO if the core criteria are met, and Section 269S(1) provides that a TCO is taken to have come into force on the day the application is lodged. The explanatory statement also references section 269K(1) which requires the CEO to invite submissions from interested parties after accepting a TCO application.
The Act imposes obligations on both the CEO and applicants for TCOs. For the CEO, the obligations include determining whether an application meets the core criteria outlined in section 269C, publishing a notice in the Gazette as soon as practicable after accepting a valid application to allow for submissions (section 269K(1)), and making a written TCO if the application meets the criteria (section 269P(3)). For applicants, the obligations are to submit a valid application under section 269F and to ensure the application details meet the core criteria. There is no indication that the Act imposes any additional obligations on other parties such as importers, beyond their rights to apply for duty refunds under the Regulations.
The Act does not explicitly state any offences, penalties, or consequences for breach of its provisions regarding TCOs. However, general legal principles and administrative law would apply if there were any breaches, such as failure to comply with the notice and submission requirements under section 269K(1). For example, if the CEO failed to publish a notice or did not consider valid submissions, this could potentially be challenged in court. The Act itself does not outline specific penalties but relies on broader legal frameworks for enforcement.