EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0615050
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 Limited applied for a TCO in respect of certain calciner burner lances parts on 22 September 2006.
Instrument
TCO No 0615050 was made on 08 December 2006. It declares that those certain calciner burner lances 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. 0615050 is taken to have come into force on 22 September 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, through its Part XVA, establishes a framework for the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. Enacted by the Australian Parliament, this Act aims to provide relief on customs duties for certain goods by reducing or eliminating the duty rate for specified items, provided that the goods are not produced in Australia and no substitutable goods are available domestically. The primary objective of this legislative instrument is to facilitate smoother trade operations by mitigating the financial burden on importers of specific goods, thereby encouraging trade and economic activity. This was exemplified in Tariff Concession Instrument No. 0615050, issued on 8 December 2006, which granted duty-free status to certain calciner burner lances parts, effectively benefiting the rights of importers and aligning with the Act's goal of fostering an efficient customs duty regime.
Scope and Application
The Tariff Concession Instrument No. 0615050, made under the Customs Act 1901, pertains to the application process for Tariff Concession Orders (TCOs) as outlined in Part XVA of the Act. This legislation applies to any person or entity seeking to obtain a TCO for specific goods from the Chief Executive Officer of Customs. The instrument is designed to provide a lower rate of customs duty for goods that meet the core criteria established by the Act, specifically when no substitutable goods are produced in Australia in the ordinary course of business. The TCO applies to goods specified in the application, in this case, certain calciner burner lance parts, and the concession is effective from the date the application was lodged. This legislation operates at a Commonwealth level and its scope is further defined through subordinate instruments such as the Customs Tariff Act 1995, which details the specific tariff items and duties. The TCO does not disadvantage any person or impose new liabilities, but rather aims to benefit importers by potentially allowing them to apply for a refund of duty on goods imported since the TCO's effective date.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0615050 under the Customs Act 1901 are sections 269C, 269B, 269F, 269P(3), and 269SJ, which set out the criteria for Tariff Concession Orders (TCOs) and the conditions under which they can be applied for and granted. Section 269C specifies that a TCO application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269B provides definitions for terms such as ‘goods produced in Australia’ and ‘ordinary course of business’, while section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, they must make a written order (a TCO). Section 269SJ outlines the goods that cannot be subject to a TCO.
Under this Act, the CEO is obligated to assess applications for TCOs to determine whether they meet the core criteria specified in section 269C. The CEO must ensure that no substitutable goods were produced in Australia at the time the application was lodged. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any person who considers there are reasons why the TCO should not be made. If no submissions are received, the CEO proceeds to make the TCO. The rights of importers are beneficially affected by the TCO, as they may apply for a refund of duty on goods imported since the day the TCO is taken to have come into force.
There are no specific offences, penalties, or civil/criminal consequences mentioned for breach of the provisions in this TCO. However, the TCO does not impose any liabilities on any person. It is essential to adhere to the requirements set out in the Act to avoid any potential repercussions related to the concession, such as the risk of having the TCO revoked if it is found that the conditions for its issuance were not met. The general compliance with the terms and conditions of the TCO is crucial to ensure that the intended tariff concessions are applied correctly.