EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0618420
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.
Beresford Concrete Products Pty Ltd applied for a TCO in respect of certain drycast concrete moulders on 10 November 2006.
Instrument
TCO No 0618420 was made on 2 February 2007. It declares that those certain drycast concrete moulders 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. 0618420 is taken to have come into force on 10 November 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 through which the Chief Executive Officer (CEO) of Customs can issue Tariff Concession Orders (TCOs). The Act addresses the problem of ensuring fair and competitive trade practices by providing a mechanism for reducing the customs duty on specific goods under certain conditions. One such TCO, No. 0618420, was introduced to provide tariff concessions for certain drycast concrete moulders, recognising that no substitutable goods were produced in Australia at the time of the application. This instrument aims to support industries by reducing the duty on these goods from 5% to 0%, thereby enhancing their competitiveness without imposing any liabilities or disadvantaging other parties. The CEO published a notice inviting public submissions, though none were received, which underscores the smooth acceptance of this tariff concession within the legislative framework.
Scope and Application
The Customs Act 1901, as amended and applied through Tariff Concession Orders (TCOs), governs the tariff concessions for certain goods entering Australia, with a particular focus on ensuring these concessions do not undermine local production. This Act applies to individuals and entities seeking tariff concessions for imported goods, as well as the Chief Executive Officer of Customs who is responsible for evaluating and approving these concessions. The Act's geographic reach is national, as it pertains to the importation of goods into Australia. It excludes goods specified in section 269SJ of the Act, which cannot be subject to a TCO, and applies to goods that are not substitutable by any produced in Australia. The application of this Act can be extended or restricted through subordinate instruments, such as the Customs Tariff Act 1995, which provides the schedule of duties and allows for the specification of goods eligible for concession under a TCO. In the case of Tariff Concession Instrument No. 0618420, certain drycast concrete moulders were granted a tariff concession effective from the date of the application, 10 November 2006.
Key Provisions
The Customs Act 1901, as referenced in the explanatory statement for Tariff Concession Instrument No. 0618420, outlines a process by which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (section 269F). To qualify for a TCO, the goods in question must not be of a type specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO. For an application to be considered, it must meet the core criteria set out in section 269C, which requires that on the day the application was lodged, no substitutable goods were being produced in Australia in the ordinary course of business (section 269D, 269E, 269F). If the CEO is satisfied that the application meets these criteria, they must issue a written order under subsection 269P(3) that specifies the goods and the applicable rate of customs duty as prescribed in Schedule 4 of the Customs Tariff Act 1995.
Under the obligations imposed by the Act, the CEO is mandated to publish a notice in the Gazette once a TCO application is accepted as valid (subsection 269K(1)). This notice includes an invitation for any interested parties to submit their views on why the TCO should not be granted. The CEO must also consider any submissions received and decide whether the application meets the core criteria. The process for making a TCO is designed to ensure transparency and fairness, providing an opportunity for stakeholders to voice their concerns. For the specific case of TCO No. 0618420, no submissions were received in response to the published notice, which indicates a lack of opposition to the tariff concession for the specified drycast concrete moulders.
In terms of consequences for non-compliance, the explanatory statement does not explicitly detail any offences, penalties, or civil/criminal consequences for breach of the provisions outlined in the Act. However, it is implicit that any failure to adhere to the established procedures for issuing TCOs could potentially lead to legal challenges or administrative penalties, given the structured and regulated nature of the process. Importers who benefit from the TCO can apply for a refund of duties paid on goods imported since the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations. Importantly, the TCO does not impose any liabilities on any person and does not affect the rights of any person, except to the benefit of importers, as it is explicitly stated that it does not disadvantage any person or impose liabilities in respect of anything done or omitted to be done before the date of registration.