EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0603571
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.
Alcan Gove Development Pty Ltd applied for a TCO in respect of certain plant boiler silencers on 9 Febuary 2006.
Instrument
TCO No 0603571 was made on 21 April 2006. It declares that those certain plant boiler silencers 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. 0603571 is taken to have come into force on 9 Febuary 2006.
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. 0603571, enacted under the Customs Act 1901, was introduced to address the need for tariff concessions on specific goods, allowing for reduced customs duties on these items. This instrument was made by the Chief Executive Officer of Customs (CEO) and is effective from the date the application for the concession was lodged, in this case, 9 February 2006. The CEO granted the concession following an application by Alcan Gove Development Pty Ltd for certain plant boiler silencers, deeming that no substitutable goods were produced in Australia, thus meeting the core criteria for a tariff concession order (TCO). The instrument was published in the Gazette, inviting any interested parties to lodge submissions, though none were received. The primary policy objective is to facilitate the importation of goods by reducing their customs duty rate, thereby benefiting importers and potentially stimulating trade and investment in these goods.
Scope and Application
The Tariff Concession Instrument No. 0603571 under the Customs Act 1901 applies specifically to certain plant boiler silencers, a type of goods subject to a Tariff Concession Order (TCO). The instrument is directed at any entity or individual involved in the importation of these goods. The Act facilitates the application process whereby an applicant, such as Alcan Gove Development Pty Ltd, can seek a TCO from the Chief Executive Officer of Customs (CEO) to lower the customs duty rate on specified goods. The CEO evaluates whether the application meets the core criteria, which include the absence of substitutable goods produced in Australia at the time the application was lodged. Once the CEO determines that the application meets these criteria, a written order declaring the goods eligible for a reduced customs duty rate is issued. This instrument has national jurisdictional reach, extending to all of Australia and is effective from the date the application for the TCO was lodged, in this case, 9 February 2006. The instrument does not affect existing rights or impose liabilities on any person other than the Commonwealth, ensuring that the rights of importers are beneficially affected, allowing them to apply for refunds of duty on goods imported since the effective date of the TCO.
Key Provisions
The Customs Act 1901, specifically under Part XVA, outlines the procedure for Tariff Concession Orders (TCOs) (section 269F). An applicant, such as Alcan Gove Development Pty Ltd, can apply to the Chief Executive Officer of Customs (CEO) for a TCO concerning certain goods. If the CEO determines that the application pertains to goods not listed in section 269SJ of the Act and meets the core criteria, a TCO will be issued. The core criteria, as defined in section 269C, require that on the day the application is submitted, no substitutable goods were produced in Australia in the ordinary course of business. The terms "goods produced in Australia," "ordinary course of business," and "substitutable goods" are further defined in sections 269D, 269E, and 269F respectively.
The obligations under the Act for the CEO include reviewing the TCO application, determining whether it meets the core criteria, and if satisfied, issuing a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. The CEO is also required to publish a notice in the Gazette as soon as practicable after accepting the application, inviting any interested parties to submit objections or reasons why the TCO should not be made (subsection 269K(1)). In the case of TCO No. 0603571, no objections were received.
The Act does not impose any specific obligations on the applicant beyond submitting a valid application and meeting the core criteria. However, it does impose certain obligations on the CEO, such as conducting a thorough review of the application and ensuring that all procedural requirements are met before issuing the TCO. Additionally, the CEO must consider any submissions received from interested parties and take them into account in the decision-making process.
In terms of penalties and consequences for breach, the Act does not explicitly outline specific offences or penalties for failing to comply with the provisions relating to TCOs. However, any failure to comply with the requirements of the Act or the Regulations could potentially lead to legal challenges or disputes. For example, if the CEO were to issue a TCO without properly following the required procedures, the applicant or other interested parties could potentially challenge the validity of the TCO in court. Additionally, if the CEO were to fail to consider and respond to submissions received from interested parties, this could also potentially lead to legal challenges or disputes. The consequences of such challenges or disputes could include the TCO being overturned or modified, or the CEO being required to take specific actions to remedy any non-compliance with the Act or Regulations.