EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0606999
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.
Bendigo Mining applied for a TCO in respect of certain articulated rear dump trucks on 13 April 2006.
Instrument
TCO No 0606999 was made on 04 August 2006. It declares that those certain articulated rear dump trucks 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. 0606999 is taken to have come into force on 13 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 Customs Act 1901, enacted by the Australian Parliament, establishes a framework under which the Chief Executive Officer of Customs (CEO) can issue Tariff Concession Orders (TCOs) that apply reduced rates of customs duty to certain goods. The Tariff Concession Instrument No. 0606999, issued on 4 August 2006, addresses the need for a tariff concession for specific articulated rear dump trucks by Bendigo Mining. This instrument was introduced to alleviate the financial burden on businesses importing these trucks by providing a zero-rate duty, thereby improving their competitiveness. The CEO made this decision after confirming that no substitutable goods were produced in Australia, satisfying the core criteria stipulated in the Act. This concession does not disadvantage any other party and allows importers to apply for duty refunds on imports made since the effective date of the concession, which is 13 April 2006.
Scope and Application
The Tariff Concession Instrument No. 0606999, issued under the Customs Act 1901, pertains specifically to the application of tariff concession orders (TCOs) for certain articulated rear dump trucks. The Act applies to any individual or entity that imports these goods, granting them eligibility for a reduced customs duty rate as specified in the TCO. This legislative instrument extends across Australia, adhering to the provisions set forth by the Commonwealth. The instrument does not affect any pre-existing rights of persons other than the Commonwealth, ensuring that it does not disadvantage or impose new liabilities on such persons for actions taken prior to the registration of the TCO. Conversely, importers stand to benefit from the rights conferred by the TCO, including the potential for duty refunds on imports since the effective date of the TCO. Any application for a TCO is subject to the core criteria outlined in the Act, specifically that no substitutable goods are produced in Australia in the ordinary course of business. The instrument also allows for further clarification and extension through subordinate instruments, ensuring its applicability is comprehensively addressed.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0606999 (TCO No. 0606999) under the Customs Act 1901 (the Act) involve the declaration of certain articulated rear dump trucks as goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)). This instrument effectively makes the duty on these trucks free of charge, which contrasts with the general rate of duty of 5% (section 269P(3)). The core criteria for a Tariff Concession Order (TCO) application are outlined in section 269C, which stipulates that a TCO application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged. Definitions pertinent to this include ‘goods produced in Australia’ in section 269D, ‘ordinary course of business’ in section 269E, and ‘substitutable goods’ in section 269F.
Under the Act, the obligations imposed on parties applying for a TCO are primarily about ensuring that the goods in question meet the specified criteria. Specifically, applicants must demonstrate that no substitutable goods were produced in Australia at the time the application is made (section 269C). Additionally, the Chief Executive Officer of Customs (the CEO) must publish a notice in the Gazette inviting submissions from any interested parties who may oppose the TCO, as per subsection 269K(1) of the Act. In the case of TCO No. 0606999, Bendigo Mining’s application for the articulated rear dump trucks met these criteria, and no submissions were received opposing the TCO.
The Act provides for certain civil and criminal consequences in case of breaches. However, the explanatory statement does not detail specific offences or penalties related to the TCO. It is important to note that the TCO does not affect the rights of any person adversely and does not impose any new liabilities on individuals or entities other than the Commonwealth. This means that while the TCO aims to provide tariff concessions, it is designed to operate within the existing legal framework without introducing new liabilities or disadvantages to non-Commonwealth entities.
In summary, TCO No. 0606999 under the Customs Act 1901 declares certain articulated rear dump trucks as goods eligible for tariff concessions, effectively setting their duty rate to zero. The application process and criteria are clearly defined, and the obligations on applicants and the CEO are explicitly stated. There are no penalties or adverse consequences mentioned for non-compliance within the provided explanatory statement, and the TCO ensures that no existing rights are negatively impacted, except for potentially beneficial changes for importers.