EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0610952
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 heaters on 28 June 2006.
Instrument
TCO No 0610952 was made on 22 September 2006. It declares that those certain heaters 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. 0610952 is taken to have come into force on 28 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 Tariff Concession Instrument No. 0610952, enacted under the Customs Act 1901, addresses the issue of tariff concessions for certain imported goods, specifically heaters in this case. The instrument was introduced to provide a lower rate of customs duty on these goods, which aligns with the broader objective of facilitating trade by reducing import costs. The Customs Act 1901 allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) when certain criteria are met, such as the absence of substitutable goods produced in Australia. In this instance, Alcan Gove Development Pty Ltd applied for a TCO for specific heaters, and the instrument was made effective from the date of application, 28 June 2006. The decision was made without any opposition, and it aims to benefit importers by potentially allowing them to claim refunds on duties paid prior to the effective date.
Scope and Application
The Tariff Concession Instrument No. 0610952, made under the Customs Act 1901, applies to specific goods for which an application has been made and approved by the Chief Executive Officer of Customs. This instrument provides a concession in the form of a zero per cent customs duty rate for certain heaters, which under normal circumstances attract a duty of 5%. The concession applies to the goods specified in the instrument, which were subject to an application by Alcan Gove Development Pty Ltd on 28 June 2006. The instrument takes effect from the date the application was lodged and does not retroactively affect any rights or liabilities accrued before this date. It is important to note that the instrument excludes any goods specified in section 269SJ of the Act, which cannot be subject to a Tariff Concession Order. The application of this instrument is confined to the Commonwealth of Australia and does not extend to state or territory jurisdictions. Subordinate instruments may further define or extend the application of the Tariff Concession Orders as per the Customs Act 1901.
Key Provisions
The key operative sections of Tariff Concession Instrument No. 0610952 under the Customs Act 1901 (section 269P(3)) establish the conditions under which the Chief Executive Officer of Customs (CEO) can grant a Tariff Concession Order (TCO). This particular instrument (section 269C) was made to declare that certain heaters are subject to a concession, applying a 0% duty rate, provided that no substitutable goods were produced in Australia at the time of the application. The concession was granted based on the CEO's satisfaction that the core criteria were met, specifically that there were no substitutable goods produced in Australia in the ordinary course of business (section 269B).
The Act imposes several obligations on parties applying for a TCO. The applicant must ensure that the goods in question are not specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO (section 269F). Once an application is accepted, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections or reasons why the TCO should not be granted (subsection 269K(1)). If the CEO is satisfied that the application meets the core criteria, they must make a written order declaring the goods to which the concession applies (subsection 269P(3)).
The Act also sets out consequences for non-compliance or breach of its provisions. While specific offences, penalties, or civil/criminal consequences for breach of the TCO provisions are not detailed in the explanatory statement, the general legal framework under which the Customs Act 1901 operates would apply. Typically, breaches of customs regulations can result in financial penalties, legal action, or other enforcement measures as deemed appropriate by the relevant authorities. It is important to note that while the TCO does not impose liabilities on any person for actions taken before its registration, it does beneficially affect the rights of importers by allowing them to apply for a refund of duty on goods imported since the TCO came into force.