EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0515958
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.
Bremner Glass Equipment Pty Ltd applied for a TCO in respect of certain plate glass handlers on 11 November 2005.
Instrument
TCO No 0515958 was made on 06 February 2006. It declares that those certain plate glass handlers 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. 0515958 is taken to have come into force on 11 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. 0515958, enacted in 2006, is a legislative instrument made under the Customs Act 1901. This instrument addresses the need for tariff concessions to be granted to importers of certain goods where no substitutable goods are produced in Australia. The instrument was created by the Chief Executive Officer of Customs following an application by Bremner Glass Equipment Pty Ltd for a Tariff Concession Order (TCO) concerning certain plate glass handlers. The objective of this legislation is to provide a lower rate of customs duty on these specific goods, thereby encouraging trade and ensuring that Australian importers are not disadvantaged when importing these goods.
The enactment of this instrument by the Chief Executive Officer of Customs follows the provisions outlined in the Customs Act 1901, specifically under Part XVA which governs the process for making TCOs. The TCO No. 0515958 came into force on the same day as the application was lodged, 11 November 2005, and no submissions were received in opposition to the concession. The rights of importers are protected under this instrument, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO. This legislative measure aims to support the Australian import market by reducing the customs duty on certain goods, in line with the policy objectives set out in the Customs Act 1901.
Scope and Application
The Tariff Concession Instrument No. 0515958, made under Part XVA of the Customs Act 1901, applies to certain plate glass handlers which Bremner Glass Equipment Pty Ltd sought to import. The Act allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) that provide a lower rate of customs duty on specified goods if no substitutable goods are produced in Australia. The instrument specifically applies to goods defined in the Customs Tariff Act 1995, with the general duty rate reduced from 5% to free for these particular plate glass handlers. The TCO applies nationally, as it is an instrument under the Commonwealth's customs legislation. The Act does not specify exclusions, but section 269SJ of the Customs Act 1901 excludes certain goods from being subject to a TCO. The commencement date for the TCO is 11 November 2005, the date on which the application was lodged, and it does not disadvantage or impose liabilities on any person for actions taken prior to its registration. The TCO benefits importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO.
Key Provisions
The main operative sections of the Customs Act 1901, particularly as they relate to Tariff Concession Orders (TCOs), are sections 269C, 269F, 269P, and 269S. Section 269F allows for an application to be made to the Chief Executive Officer of Customs (CEO) for a TCO concerning specific goods. Section 269C stipulates that a TCO application will meet the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, section 269P(3) requires the CEO to make a written order, the TCO, declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. This instrument then specifies the duty rate for these goods, which can differ from the general rate.
The Act imposes certain obligations and requirements on the parties involved. The CEO is required to ensure that the application for a TCO does not pertain to goods specified in section 269SJ, which are ineligible for a TCO. If the CEO is satisfied that the application meets the core criteria, they must publish a notice in the Gazette inviting any interested parties to submit their views on why the TCO should not be made, as per section 269K(1). Furthermore, the Act mandates that a TCO comes into force on the day the application is lodged, as outlined in section 269S(1). In this case, TCO No. 0515958 came into force on 11 November 2005, the day the application was made.
Failure to comply with the provisions of the Customs Act 1901 or the conditions set out in a TCO can lead to various consequences. While the Act does not explicitly outline specific offences or penalties for breach of TCOs, general provisions within the Act and related regulations may apply. For example, section 134 of the Customs Act provides that any person who contravenes an Act or regulation is liable to a penalty. The penalty for serious breaches can be significant, including substantial fines and potential imprisonment, depending on the severity and intent of the breach. Importers, however, may be entitled to a refund of duty paid on goods imported since the effective date of the TCO, as stipulated under paragraph 126(1)(r) of the Regulations.