EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0608179
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.
Gosfern applied for a TCO in respect of certain waste biomass gasifiers on 11 May 2006.
Instrument
TCO No 0608179 was made on 04 August 2006. It declares that those certain waste biomass gasifiers 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. 0608179 is taken to have come into force on 11 May 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. 0608179 was enacted in 2006 under the authority of the Customs Act 1901. This legislation was introduced to address the need for tariff concessions for certain goods, specifically waste biomass gasifiers in this instance, where no substitutable goods are produced in Australia. The instrument allows for the reduction or exemption of customs duty on these specified goods, thereby supporting the import of these products by lowering financial barriers for businesses and consumers. The policy objective is to encourage the importation of goods that are not domestically produced, potentially fostering industry development and economic benefits. The instrument was made by the Chief Executive Officer of Customs, following an application by Gosfern, and it came into force on the date the application was lodged, 11 May 2006. The instrument’s effect is to benefit importers by allowing them to claim refunds for duties paid on the specified goods since the effective date.
Scope and Application
The Tariff Concession Instrument No. 0608179 under the Customs Act 1901 applies to specific waste biomass gasifiers, as determined by an application submitted by Gosfern on 11 May 2006. The instrument was enacted on 4 August 2006, and it reduces the customs duty on these gasifiers from the general rate of 5% to free, provided that no substitutable goods were produced in Australia at the time of application. This concession is applicable nationally across Australia and is contingent upon the Chief Executive Officer of Customs determining that the application meets the core criteria outlined in section 269C of the Act. The instrument ensures that no person (other than the Commonwealth) is disadvantaged by the tariff concession, and it allows importers to apply for a refund of duty for goods imported since the effective date of the concession. The instrument does not impose any liabilities on any person and is subject to the provisions of the Customs Tariff Act 1995.
Key Provisions
The key operative sections of this legislation, specifically Instrument TCO No. 0608179, provide a framework for the application and approval of Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269F allows an individual or entity to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. Section 269C outlines the core criteria that must be met for an application to be considered valid, which includes the absence of substitutable goods produced in Australia on the day the application is lodged (Section 269P(3)). If these criteria are met, the CEO must then make a written order declaring the goods subject to the TCO, as seen in the application by Gosfern for certain waste biomass gasifiers (Section 269P(3)). This declaration specifies the lower rate of customs duty applicable to these goods, which in this case is free duty instead of the general rate of 5% (Section 269P(3)).
The Act imposes several obligations and requirements on the parties involved. Firstly, any person wishing to apply for a TCO must ensure their application meets the core criteria as defined in the Act. This involves demonstrating that no substitutable goods were produced in Australia on the day the application was lodged. Additionally, the CEO has a responsibility to publish a notice in the Gazette once an application is accepted as valid, inviting any interested parties to lodge submissions (Section 269K(1)). The CEO must then consider these submissions before deciding whether to grant the TCO. In this instance, the CEO did not receive any submissions in response to the published notice. Finally, the TCO itself does not affect the rights of any person as at the date of registration, ensuring that it does not disadvantage or impose liabilities on individuals or entities for actions taken prior to the TCO's effective date.
Under the Customs Act 1901, there are no explicit offences or penalties mentioned for breach of the TCO provisions. However, any failure to comply with the terms of a TCO or the process outlined in the Act could potentially lead to civil or administrative consequences. For example, if an entity were to import goods without properly applying for and obtaining a TCO, they could be liable for the full customs duty on those goods, which they would not be entitled to if a TCO had been in place. Additionally, any misrepresentation or fraudulent activity in the application process could lead to further legal consequences, including fines or other penalties under the general administrative law provisions. The absence of specific penalties in this legislation does not diminish the importance of adhering to the outlined procedures and obligations.