EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0617442
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.
Plastral Pty Ltd applied for a TCO in respect of certain two layer laminate on 21 September 2006.
Instrument
TCO No 0617442 was made on 08 December 2006. It declares that those certain two layer laminate are is a 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. 0617442 is taken to have come into force on 21 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 Tariff Concession Instrument No. 0617442, enacted under the Customs Act 1901, addresses the need to provide tariff concessions for specific goods that are not produced domestically, thereby encouraging their importation by reducing customs duty rates. This instrument was introduced by the Chief Executive Officer of Customs in response to an application by Plastral Pty Ltd for a tariff concession order (TCO) concerning certain two-layer laminates. The policy objective of this measure is to facilitate the importation of goods that are not produced in Australia, ensuring that no domestic industry is disadvantaged by the concession and that the rights of importers are preserved. The instrument was published in the Gazette to allow for any objections, although none were received, and it came into force on the date the application was lodged, 21 September 2006. The concession does not affect the rights of any person adversely nor impose any new liabilities, and importers can apply for a refund of duty on goods imported since the concession became effective.
Scope and Application
The Customs Act 1901 applies to individuals and entities involved in the importation of goods into Australia, particularly focusing on those seeking tariff concessions. The Act facilitates the process through which applicants can obtain a Tariff Concession Order (TCO) from the Chief Executive Officer of Customs. This legislation is applicable nationally, and its primary objective is to ensure that the application of customs duty is fair and non-discriminatory, particularly in cases where substitutable goods are not produced in Australia. The Act outlines specific criteria that an application must meet to qualify for a TCO, including the absence of substitutable goods produced domestically. Once an application satisfies these criteria, a TCO is issued, granting tariff concessions that may reduce or eliminate customs duty on specified goods. The TCO in question, No. 0617442, applies to certain two-layer laminates, reducing the duty rate from 5% to free, effective from the date of application submission. This legislative mechanism is subject to consultation and public notice requirements, ensuring transparency and the opportunity for interested parties to voice any objections.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0617442 under the Customs Act 1901 include section 269C, which defines the core criteria that a Tariff Concession Order (TCO) application must meet. Specifically, section 269C mandates that the application must be made when no substitutable goods are produced in Australia in the ordinary course of business (s 269C). Section 269P(3) further requires that if the Chief Executive Officer (CEO) of Customs is satisfied that these core criteria are met, a written order (TCO) must be made, specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question (s 269P(3)). This instrument was made on 08 December 2006, declaring that certain two-layer laminates are subject to a TCO, resulting in a duty rate of free instead of the general rate of 5%.
The obligations imposed on parties governed by this Act include the requirement for applicants to ensure that their applications for TCOs meet the core criteria outlined in section 269C. This involves demonstrating that no substitutable goods are being produced in Australia at the time of application. Additionally, the CEO has the duty to assess these applications against the criteria and, if satisfied, to make a TCO as specified in section 269P(3). The CEO must also publish a notice in the Gazette inviting submissions from any interested parties who may oppose the TCO, as required by subsection 269K(1) of the Act.
In terms of potential breaches, although the explanatory statement does not explicitly detail offences or penalties, it is reasonable to infer that any failure to comply with the requirements to meet the core criteria for a TCO application, or any misuse of the concessions granted by a TCO, could result in legal consequences. Typically, breaches of customs regulations can lead to fines, penalties, and potentially criminal charges, depending on the severity and intent of the breach. The specific penalties would be outlined in the broader Customs Act 1901 or related regulations, which may include substantial fines or imprisonment for more serious offences.