EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0611944
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.
Finlay Screening & Crushing Systems Pty Ltd applied for a TCO in respect of certain vibratory screeners on 17 July 2006.
Instrument
TCO No 0611944 was made on 29 September 2006. It declares that those certain vibratory screeners 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. 0611944 is taken to have come into force on 17 July 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 by the Australian Parliament to regulate customs and border control for imported goods. The Act includes a provision for Tariff Concession Orders (TCOs), which can be applied for by individuals or companies to obtain a lower rate of customs duty on specific goods. The Tariff Concession Instrument No. 0611944, made in 2006, addresses the specific issue of applying a concessional tariff rate to certain vibratory screeners. Finlay Screening & Crushing Systems Pty Ltd applied for this concession, and the Chief Executive Officer of Customs determined that no substitutable goods were being produced in Australia, thus meeting the core criteria for the concession. As a result, the concessional tariff rate of 0% was applied to these goods, effective from the date of the application, 17 July 2006. The process included a requirement to consult and publish notices in the Gazette, although no submissions were received in response to this particular concession.
Scope and Application
The Tariff Concession Instrument No. 0611944 under the Customs Act 1901 applies to specific goods, namely certain vibratory screeners, which are subject to a lower rate of customs duty as per the instrument. This Act applies to any person or entity seeking tariff concessions for these specified goods, ensuring they meet the criteria set out in the Act, particularly that no substitutable goods are produced in Australia in the ordinary course of business. The instrument's geographic reach is national, as it is governed under the Commonwealth legislation. The instrument does not specify any exclusions, exemptions, or thresholds other than those already outlined in sections 269SJ, 269C, 269B, and 269D of the Act. The application of the Act can be extended or restricted through subordinate instruments, such as regulations, but this specific instrument does not introduce additional criteria beyond what is stated in the Act itself.
Key Provisions
The main operative sections of this legislation involve the making of Tariff Concession Orders (TCOs) under the Customs Act 1901 (the Act) (s 269F). Specifically, section 269C sets out the core criteria that must be met for an application for a TCO to be accepted, including the requirement that no substitutable goods are produced in Australia in the ordinary course of business (s 269D and s 269E). When the Chief Executive Officer of Customs (the CEO) is satisfied that an application meets these criteria, they must make a written order (a TCO) specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question (s 269P(3)). In this case, the TCO made on 29 September 2006 (TCO No 0611944) specifies that the vibratory screeners in question are subject to item 50 of Schedule 4 to the Tariff, resulting in a duty rate of 0% (s 269P(3)).
The obligations and requirements imposed by the Act on the parties it governs include the obligation on applicants to ensure their applications meet the core criteria specified in section 269C of the Act. This includes demonstrating that no substitutable goods are produced in Australia in the ordinary course of business. The CEO is required to publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made (s 269K(1)). The CEO must also ensure that 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 (s 269S(2)).
The legislation does not explicitly state any offences, penalties, or civil/criminal consequences for breach of its provisions. However, non-compliance with the core criteria for TCO applications could potentially lead to the application being rejected by the CEO, which could have financial implications for the applicant. Additionally, if the TCO is found to have been incorrectly applied or if there is evidence that substitutable goods were being produced in Australia in the ordinary course of business at the time of the application, this could potentially lead to legal challenges or penalties for those involved. The maximum penalties for breaches of the Customs Act 1901 or the Customs Tariff Act 1995 are not specified in this legislation, but could include fines or imprisonment depending on the nature and severity of the breach.