EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0605450
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.
Pacific Lining Solutions Pty Ltd applied for a TCO in respect of certain high density thermoplastic concrete liners on 17 March 2006.
Instrument
TCO No 0605450 was made on 9 June 2006. It declares that those certain hig density thermoplastic concrete liners 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. 0605450 is taken to have come into force on 17 March 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. 0605450, enacted in 2006, amends the Customs Act 1901 to address the need for tariff concessions on specific goods that are not produced in Australia. This instrument, crafted under the authority of the Customs Act, aims to facilitate the importation of certain high-density thermoplastic concrete liners by providing a concession on the customs duty that would otherwise apply. This legislative measure ensures that the goods, which are not produced domestically, can be imported without the burden of the standard tariff rates, thereby promoting trade efficiency and economic benefits for importers.
The instrument was developed following an application by Pacific Lining Solutions Pty Ltd for a tariff concession on their high-density thermoplastic concrete liners, which led to the decision by the Chief Executive Officer of Customs. The application process involved a review to ensure compliance with the criteria outlined in the Customs Act, specifically the core criteria under section 269C, and a subsequent publication in the Gazette inviting any interested parties to submit their views. As no objections were raised, the instrument was enacted, providing a free tariff rate on the specified goods from the date of the application, thereby ensuring that the rights of the importers are protected without any retroactive disadvantages or liabilities.
Scope and Application
The Tariff Concession Instrument No. 0605450 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specified goods, namely high-density thermoplastic concrete liners. This instrument is part of a broader scheme outlined in Part XVA of the Act, which allows for the reduction or exemption of customs duty on goods through Tariff Concession Orders (TCOs). The legislation operates under the authority of the Chief Executive Officer of Customs (CEO) who has the discretion to approve such orders provided the application meets the core criteria outlined in the Act. Notably, the CEO must ensure that the goods in question are not specified in section 269SJ of the Act, which lists goods ineligible for tariff concessions. The instrument's geographic and jurisdictional reach is limited to the Commonwealth of Australia, where the Customs Act 1901 applies. The application of the Act is further extended or restricted through subordinate instruments as necessary. The TCO does not disadvantage any person other than the Commonwealth and does not impose liabilities on any person in relation to actions taken before the TCO's effective date.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0605450 pertain to the making of Tariff Concession Orders (TCOs) under section 269F of the Customs Act 1901 (the Act). Section 269C sets out the core criteria that must be satisfied for a TCO to be granted, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (section 269C). The definitions of key terms such as ‘goods produced in Australia’ (section 269D), ‘ordinary course of business’ (section 269E), and ‘substitutable goods’ (section 269D) are also crucial in determining eligibility for a TCO. Once the Chief Executive Officer of Customs (the CEO) is satisfied that these criteria are met, they are required to make a written TCO order (section 269P(3)). This instrument specifically applies to certain high density thermoplastic concrete liners, declaring that they are subject to a zero rate of customs duty instead of the general rate of 5% (section 269P(3)).
The obligations imposed by this Act on the parties or entities it governs include the requirement for Pacific Lining Solutions Pty Ltd to ensure that their application for a TCO meets the core criteria, particularly that no substitutable goods were produced in Australia on the day the application was lodged. The CEO must publish a notice in the Gazette inviting any interested parties to submit reasons why the TCO should not be made (subsection 269K(1)). The CEO’s obligations also include evaluating the application to determine if it meets the core criteria and, if satisfied, making a written TCO order. Additionally, the Act mandates that the TCO does not affect the rights of any person, except the Commonwealth, as at the date of registration (subsection 269S(1)).
Offences and penalties are not explicitly detailed in the explanatory statement for Tariff Concession Instrument No. 0605450. However, any breach of the Customs Act 1901, including the improper application or misuse of a TCO, may result in civil or criminal consequences. For civil penalties, the Act may impose fines as stipulated in the regulations, while criminal penalties could include imprisonment or fines as prescribed by the Act or other relevant legislation. The maximum penalties would depend on the specific nature of the breach and the relevant statutory provisions.