EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0607263
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.
Siemens Ltd applied for a TCO in respect of certain industrial electronic cables on 24 April 2006.
Instrument
TCO No 0607263 was made on 04 August 2006. It declares that those certain industrial electronic cables 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. 0607263 is taken to have come into force on 24 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 was enacted to provide for the collection of customs duty and the regulation of imports and exports. It includes provisions for Tariff Concession Orders (TCOs), which are designed to provide relief from customs duty for certain goods, under specific conditions. The Tariff Concession Instrument No. 0607263 was introduced to address the specific needs of Siemens Ltd, which sought a concession on certain industrial electronic cables. This instrument was enacted by the Commonwealth Parliament and aims to facilitate trade by reducing the financial burden on importers of specified goods, provided that no substitutable goods are produced domestically. The instrument was designed to ensure that the application of the concession does not disadvantage any party and allows for a refund of duty to importers for goods imported since the effective date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0607263 is a legislative instrument under the Customs Act 1901, specifically within Part XVA of the Act, which establishes a scheme for Tariff Concession Orders (TCOs). This legislation applies to entities seeking tariff concessions for specific goods, allowing for a lower rate of customs duty on those goods. The instrument was applied to Siemens Ltd's application for tariff concessions on certain industrial electronic cables, which were determined to be eligible for a TCO as no substitutable goods were produced in Australia at the time of the application. The TCO applies nationally, affecting the rights of importers by enabling them to apply for a refund of duty on goods imported since the day the TCO was taken to have come into force. Notably, the TCO does not disadvantage any person or impose liabilities on anyone in respect of anything done or omitted before the date of registration. The application and decision process involve the Chief Executive Officer of Customs, who must consider submissions from interested parties before making a written order if the core criteria are met. The TCO came into force on the date the application was lodged, 24 April 2006.
Key Provisions
The key operative sections of the Customs Act 1901, as applied through Tariff Concession Instrument No. 0607263, require the Chief Executive Officer of Customs (CEO) to make a Tariff Concession Order (TCO) if the application for such an order meets the core criteria, and no substitutable goods are produced in Australia (s 269C). Specifically, section 269F allows a person to apply for a TCO in respect of goods, while section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, a written order must be made. This particular TCO, issued on 4 August 2006, applies to certain industrial electronic cables and declares them to be subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, resulting in a free rate of duty instead of the general 5% rate (s 269P(3)).
The obligations imposed by the Act on the parties it governs are primarily on the CEO, who must ensure that the application for a TCO meets the core criteria and that no substitutable goods are produced in Australia. The CEO must also publish a notice in the Gazette inviting any interested party to lodge a submission if they believe the TCO should not be made (s 269K(1)). Additionally, the CEO must ensure that the TCO does not affect the rights of any person (other than the Commonwealth) adversely as at the date of registration (s 269S(1)). Importers, in particular, benefit from this TCO as they can apply for a refund of duty on goods imported since the TCO came into force, which is on the day the application was lodged (Reg 126(1)(r)).
In terms of offences, penalties, or civil/criminal consequences for breach, the Act does not explicitly state any specific penalties for failing to comply with the TCO requirements or for making a false application. However, general provisions in the Customs Act 1901 and related regulations may apply, which could include fines and imprisonment for fraudulent activities or breaches of customs laws. The consequences for non-compliance would depend on the specific nature of the breach and the provisions of the broader customs legislation.