EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0606865
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.
Onesteel Manufacturing Pty Ltd applied for a TCO in respect of certain bentonite feeders and weighers on 11 April 2006.
Instrument
TCO No 0606865 was made on 7 July 2006. It declares that those certain bentonite feeders and weighers 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 0%.
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. 0606865 is taken to have come into force on 11 April 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. 0606865 was enacted in 2006 under the Customs Act 1901 to address the specific needs of certain industries by reducing customs duty on particular goods. This legislation was introduced to facilitate economic growth and competitiveness by allowing the Chief Executive Officer of Customs to grant tariff concessions on goods that are not produced domestically or are not readily substitutable with locally produced alternatives. The instrument was enacted by the relevant legislature and aims to ensure that the rights of importers are positively affected, particularly by enabling them to apply for refunds of duties paid on the specified goods prior to the concession's effective date. The process requires consultation with stakeholders and the absence of objections, as evidenced in this instance, allows for the concession to be implemented smoothly without imposing new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0606865 is part of the Customs Act 1901, which applies to all entities and individuals involved in the importation of goods that may benefit from tariff concessions. This particular instrument pertains specifically to certain bentonite feeders and weighers, which are now subject to a reduced rate of customs duty of 0% as opposed to the standard 5%, following the application by Onesteel Manufacturing Pty Ltd. The geographic reach of this legislation is national, operating under the Commonwealth's jurisdiction, and it applies to all imports of the specified goods across Australia. The Act does not explicitly exclude any particular entities or industries from its application, although it does specify that goods listed in section 269SJ of the Customs Act cannot be subject to a Tariff Concession Order. The application process and decision-making authority rest with the Chief Executive Officer of Customs, who must ensure that the application meets the core criteria outlined in the Act before proceeding with the concession. The instrument became effective on 11 April 2006, the date the application was lodged, and has no retroactive effect on previously incurred duties or liabilities.
Key Provisions
The Tariff Concession Instrument No. 0606865 under the Customs Act 1901 provides that certain bentonite feeders and weighers will be subject to a concessional rate of customs duty, specifically a rate of 0%, as opposed to the general rate of 5% (section 269P(3)). The concession applies from the date the application for the Tariff Concession Order (TCO) was lodged, which was 11 April 2006, according to the instrument's commencement provision (subsection 269S(1)). This instrument was made following an application by Onesteel Manufacturing Pty Ltd, which sought a concession for these goods, and the Chief Executive Officer of Customs (CEO) was satisfied that no substitutable goods were produced in Australia (section 269C).
Parties or entities governed by this Act must comply with the conditions set forth in the Customs Act 1901. For instance, they must ensure that their applications for tariff concessions are lodged in accordance with the provisions of section 269F. Moreover, any party that considers there are reasons why a TCO should not be made must submit their views to the CEO as soon as practicable after the publication of the notice inviting submissions (subsection 269K(1)). The CEO is also mandated to consider whether the application meets the core criteria, including the absence of substitutable goods produced in Australia (section 269C).
In terms of consequences for breach, the Act does not explicitly detail offences, penalties, or specific civil or criminal consequences for failing to comply with the conditions set out in the Act or the TCO. However, general provisions within the Customs Act 1901 and associated regulations may apply to those who do not comply with the statutory requirements, potentially resulting in penalties such as fines or other enforcement actions as prescribed by law. The focus of the TCO is primarily on the concessional treatment of specified goods and does not elaborate on punitive measures for non-compliance beyond the scope of general customs legislation.