EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0613080
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.
Atlas Copco Australia Pty Ltd applied for a TCO in respect of certain articulated rear dump trucks on 04 August 2006.
Instrument
TCO No 0613080 was made on 27 October 2006. It declares that those certain articulated rear dump trucks 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. 0613080 is taken to have come into force on 04 August 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. 0613080, made under the Customs Act 1901, was enacted in 2006 to address the need for tariff concessions on specific imported goods that do not have Australian-made equivalents. This legislative instrument was introduced by the Chief Executive Officer of Customs in response to an application from Atlas Copco Australia Pty Ltd for a tariff concession on articulated rear dump trucks. The primary objective, as stated in the explanatory statement, is to provide tariff relief where no substitutable goods are produced in Australia, thereby encouraging the importation of these goods without imposing additional duties. This measure was implemented to benefit importers by potentially allowing them to apply for refunds of duties paid on these goods since the effective date of the concession, which aligns with the date the application was lodged. The instrument ensures that it does not disadvantage any person other than the Commonwealth and does not impose any liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0613080 under the Customs Act 1901 applies to articulated rear dump trucks as specified in the instrument, reducing their customs duty from the general rate of 5% to free. This applies to the goods specified in the instrument, and is intended to benefit importers by allowing them to apply for a refund of duty on goods imported since the day the TCO is taken to have come into force. The instrument extends the application of the Customs Act 1901 by providing for tariff concessions on certain goods, subject to the conditions outlined in the Act. The CEO of Customs must be satisfied that the application meets the core criteria, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, before a TCO can be made. The instrument has a national reach as it applies across Australia and is subject to the provisions of the Customs Act 1901 and the Customs Tariff Act 1995. There are no stated exclusions or exemptions in this particular instrument, but the Act itself excludes certain goods from being subject to a TCO. The application of the Act can be extended or restricted through subordinate instruments, such as regulations or further TCOs.
Key Provisions
The Tariff Concession Instrument No. 0613080, issued under section 269F of the Customs Act 1901, pertains to the application and granting of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs (CEO). Specifically, section 269C mandates that a TCO application is considered valid if no substitutable goods are produced in Australia on the date of application, as defined under sections 269D (goods produced in Australia) and 269E (ordinary course of business). In this instance, section 269P(3) mandates that upon meeting these criteria, the CEO must issue a TCO, declaring that the goods in question are subject to a specified item in Schedule 4 of the Customs Tariff Act 1995, resulting in a reduced duty rate for the specified goods.
The obligations under this Act primarily concern the CEO, who must ensure that TCO applications are reviewed against the core criteria outlined in section 269C. Additionally, the CEO has the obligation to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting submissions from any interested parties (subsection 269K(1)). This notice and invitation were issued in relation to TCO No. 0613080, but no submissions were received. Furthermore, the CEO must ensure that the TCO does not adversely affect existing rights or impose liabilities on any person other than the Commonwealth, as stipulated by subsection 269S(1).
Section 269SJ of the Customs Act 1901 stipulates certain goods that cannot be subject to a TCO, including those that are subject to prohibitions or restrictions under other Acts or Regulations. In cases where a breach of the Act occurs, the consequences can include civil or criminal penalties. However, the specific penalties for breaches related to TCOs are not detailed within the provided text. The general implication is that any non-compliance with the conditions and requirements of the Act could lead to legal ramifications, including potential fines or other penalties as prescribed by relevant legislation.