EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0609617
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.
Alcan Gove Development Pty Ltd applied for a TCO in respect of certain lime kiln parts on 01 June 2006.
Instrument
TCO No 0609617 was made on 25 August 2006. It declares that those certain lime kiln parts 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. 0609617 is taken to have come into force on 01 June 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 Parliament of Australia, provides a framework for the regulation of customs duties and tariffs. Specifically, Part XVA of the Act establishes a scheme under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO). This scheme aims to address the need for lower rates of customs duty on certain imported goods. The explanatory statement for Tariff Concession Instrument No. 0609617, issued on 25 August 2006, illustrates the application of this scheme. In this instance, Alcan Gove Development Pty Ltd applied for a TCO for certain lime kiln parts, which was granted by the CEO upon determining that no substitutable goods were produced in Australia. This decision resulted in the goods in question being subject to a free rate of duty, as opposed to the general rate of 5%. The instrument ensures that the rights of importers are beneficially affected and that no liabilities are imposed on any person as a result of its implementation.
Scope and Application
The Tariff Concession Instrument No. 0609617, under the Customs Act 1901, pertains to the application and issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This Act applies to any person or entity that wishes to import goods into Australia and can benefit from reduced customs duties. The instrument specifically addresses the application submitted by Alcan Gove Development Pty Ltd for certain lime kiln parts, aiming to ensure that these goods are subject to a lower rate of customs duty under the prescribed tariff item, as no substitutable goods are produced in Australia. The TCO's geographic reach is national, as it affects the importation of these specified goods across Australia. The Act does not disadvantage any person or impose liabilities for actions taken prior to the TCO's effective date, which is the date the application was lodged, 01 June 2006. The Act further extends its application through subordinate instruments, such as the Customs Tariff Act 1995, which specifies the tariff schedule and rates applicable to the goods under the TCO.
Key Provisions
The main operative sections of the Customs Act 1901, as modified by the Tariff Concession Instrument No. 0609617, involve the process of applying for and making Tariff Concession Orders (TCOs) (sections 269F, 269C, 269P). Section 269F allows for the application of TCOs for certain goods, while sections 269C and 269P detail the criteria that must be met for the Chief Executive Officer of Customs (CEO) to make such orders. Specifically, section 269C stipulates that a TCO application meets the core criteria if, on the day of application, no substitutable goods were produced in Australia in the ordinary course of business, as defined in section 269D and section 269E respectively. Once the CEO is satisfied that the application meets these criteria, section 269P(3) mandates the CEO to issue a written TCO.
The obligations and requirements imposed by the Act on the parties it governs are primarily centred around the application process and the criteria for TCOs. The applicant, such as Alcan Gove Development Pty Ltd in this instance, must ensure that their application complies with the requirements of section 269F and meets the core criteria outlined in section 269C. The CEO, on the other hand, is obligated to assess the application against these criteria, consult with relevant stakeholders by publishing a notice in the Gazette (subsection 269K(1)), and decide whether to grant the TCO. Once a TCO is made, it must be published and will come into force on the date of the application, as per subsection 269S(1).
In terms of offences, penalties, or consequences for breach, the Act does not explicitly detail these within the confines of the explanatory statement. However, the legal framework surrounding the Customs Act and related regulations would apply. Typically, breaches of customs regulations can lead to civil or criminal penalties, including fines and imprisonment, depending on the severity and intent of the breach. The maximum penalties would be determined by the specific provisions of the Act and any applicable regulations. The explanatory statement does not provide specific maximum penalties but indicates that the TCO does not impose any liabilities on any person, thus ensuring that rights and liabilities prior to the TCO are preserved.