EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0617185
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.
Boral Asphalt Queensland applied for a TCO in respect of certain asphalt plant on 12 September 2006.
Instrument
TCO No 0617185 was made on 8 December 2006. It declares that those certain asphalt plant 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. 0617185 is taken to have come into force on 12 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, enacted by the Parliament of Australia, establishes a framework under which the Chief Executive Officer of Customs (CEO) can issue Tariff Concession Orders (TCOs) to provide lower rates of customs duty on specified goods. The 2006 Tariff Concession Instrument No. 0617185, made under the authority of this Act, specifically addresses the need to provide tariff concessions on certain asphalt plant by Boral Asphalt Queensland. This instrument was introduced to ensure that these goods, which are not produced in Australia and for which no suitable domestic alternatives exist, are subject to a reduced customs duty rate of 0%, down from the general rate of 5%. The policy objective here is to facilitate the import of these specific goods without imposing additional burdens on importers or the Commonwealth, while benefiting importers by allowing them to claim refunds on duties paid before the TCO's effective date.
Scope and Application
The Tariff Concession Instrument No. 0617185, made under the Customs Act 1901, applies to certain asphalt plant specified by Boral Asphalt Queensland, which was granted a Tariff Concession Order (TCO) by the Chief Executive Officer of Customs (CEO) on 8 December 2006. This legislation facilitates the application for tariff concessions, providing a reduced rate of customs duty for goods that meet the core criteria set out in the Customs Act 1901, such as the absence of substitutable goods produced in Australia. The TCO alters the duty rate from the general 5% to 0%, benefiting importers of the specified asphalt plant. This instrument extends to the Commonwealth jurisdiction, impacting the importation of goods across Australia. It is important to note that the TCO does not retroactively disadvantage any party and does not impose any liabilities; instead, it allows for the refund of duty paid on the goods imported since the TCO was taken to have come into force on 12 September 2006. The CEO's decision to grant the TCO was made after an invitation for submissions was published in the Gazette, to which no objections were received.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0617185, under the Customs Act 1901, pertain to the establishment of tariff concessions for specific goods. Section 269F (subsection 269P(3)) allows for the application to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO) for goods. If the CEO is satisfied that the application meets the core criteria set out in sections 269C and 269B, they must make a written order that declares the goods to which the tariff concession applies. Specifically, this instrument (TCO No. 0617185) was made on 8 December 2006 and declares that certain asphalt plant are goods to which item 50 of Schedule 4 to the Tariff applies, effectively setting the duty rate at 0% instead of the general rate of 5%.
The obligations and requirements imposed by this Act on the parties involved are straightforward. The CEO is required to decide whether an application for a TCO meets the core criteria, which include ensuring that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). The CEO must also publish a notice in the Gazette, inviting any person who may have reasons to oppose the TCO to lodge a submission (subsection 269K(1)). Additionally, the CEO must ensure that the TCO does not disadvantage any person (other than the Commonwealth) or impose any liabilities on a person in respect of anything done or omitted before the date of registration (subsection 269S(1)). In this case, the CEO did not receive any submissions opposing the TCO, and the rights of importers will be beneficially affected.
Offences and penalties are not explicitly detailed in the provided text, but the Act does outline certain civil and criminal consequences for breaches. The Customs Act 1901 would likely apply general provisions regarding penalties for non-compliance with customs regulations, which may include fines or imprisonment. However, the specific maximum penalties are not stated in the provided text. Importers can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force, which is 12 September 2006, under paragraph 126(1)(r) of the Regulations. The TCO does not impose any liabilities on any person, ensuring that no one is disadvantaged or burdened by the concession.