EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0613482
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.
Senior Thermal Engineering Pty Ltd applied for a TCO in respect of certain water cannons on 15 August 2006.
Instrument
TCO No 0613482 was made on 03 November 2006. It declares that those certain water cannons 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. 0613482 is taken to have come into force on 15 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 Customs Act 1901 was enacted to facilitate the administration of customs duties and provide for the regulation of imports and exports in Australia. It was introduced to address the need for a comprehensive legal framework governing customs duties, border control, and the regulation of international trade. The Customs Act is administered by the Australian Parliament and its objective includes streamlining the process of tariff concessions to encourage trade and economic growth. The Tariff Concession Instrument No. 0613482 was made under the authority of the Customs Act 1901, aiming to provide tariff relief on specific goods, in this case certain water cannons, by granting a tariff concession order. This concession was made to ensure that no substitutable goods were produced in Australia, thereby supporting the policy objective of fostering competitive imports and enhancing market efficiency.
Scope and Application
The Tariff Concession Instrument No. 0613482, issued under the Customs Act 1901, applies to a specific set of water cannons for which Senior Thermal Engineering Pty Ltd made an application on 15 August 2006. This instrument was issued on 03 November 2006 and became effective on the date of the application, 15 August 2006, as per the provisions of the Customs Act. The instrument was enacted to provide a tariff concession for these particular water cannons, reducing the customs duty from the general rate of 5% to free, provided that no substitutable goods were being produced in Australia at the time the application was lodged. The CEO of Customs, upon verifying that the application met the core criteria as stipulated in the Act, issued the written order. The scope of this instrument is limited to these specific water cannons, and it does not affect the rights of any person as at the date of registration, thereby ensuring that no existing rights are disadvantaged or new liabilities imposed. The process involved publishing a notice in the Gazette to invite any interested parties to submit their views on the application, though no submissions were received in this case.
Key Provisions
The primary sections relevant to Tariff Concession Orders (TCO) under the Customs Act 1901 are sections 269C, 269B, 269D, 269E, and 269F. Section 269F allows an application to be made to the Chief Executive Officer of Customs (CEO) for a TCO concerning specific goods, provided these goods are not listed in section 269SJ. If the application is deemed valid by the CEO, it must meet the core criteria set out in section 269C, which requires that no substitutable goods were produced in Australia at the time of application. This determination hinges on the definitions provided in sections 269B, 269D, and 269E, which clarify terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods'. Once these criteria are met, the CEO must issue a written TCO as specified in subsection 269P(3). For instance, in the case of Senior Thermal Engineering Pty Ltd's application for water cannons, the CEO issued TCO No. 0613482, reducing the duty rate from 5% to free, effective from the date of the application.
The obligations imposed by the Customs Act on entities and individuals under this legislative framework are primarily centred on the application process for TCOs. An applicant must ensure their request complies with the criteria outlined in sections 269C and 269F, providing sufficient evidence that no substitutable goods were being produced in Australia at the time of application. The CEO's role involves a thorough assessment of the application and adherence to the legislative requirements, including publishing a notice in the Gazette to invite submissions from interested parties, as stipulated in subsection 269K(1). The CEO must also ensure that any TCO issued does not adversely affect the rights of any person other than the Commonwealth and does not impose liabilities for actions taken prior to the TCO's effective date, as per subsection 269S(1).
In terms of consequences for non-compliance or breach of the provisions under the Customs Act, there are no specific offences or penalties mentioned within the given text. However, any failure to comply with the requirements for TCO applications or any misuse of a TCO could potentially lead to legal challenges or administrative penalties. For example, if an entity were to falsely claim that no substitutable goods were produced in Australia, they could be subject to legal action for misrepresentation or fraud. Additionally, any party adversely affected by a TCO could seek judicial review, arguing that the TCO was improperly issued or that it unfairly disadvantages them. The Act's provisions ensure that rights and duties are clearly delineated, with a structured process for handling applications and disputes.