EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0619396
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.
Comalco Aluminium (Bell Bay) Ltd applied for a TCO in respect of certain injectors on 8 December 2006.
Instrument
TCO No 0619396 was made on 2 March 2007. It declares that those certain injectors 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. 0619396 is taken to have come into force on 8 December 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, provides a framework for the administration of customs and excise duties, including the mechanism for Tariff Concession Orders (TCOs). The Tariff Concession Instrument No. 0619396, made in 2007, was introduced to address the need for tariff concessions for specific goods. The instrument was created in response to an application by Comalco Aluminium (Bell Bay) Ltd for tariff concessions on certain injectors. The objective of this measure is to allow for the concession of customs duty on goods that are not substitutable by goods produced in Australia, thus encouraging trade and reducing costs for importers of these specified goods. The instrument was made effective from the date the application was lodged, ensuring that the rights of importers are protected without imposing any new liabilities.
Scope and Application
The Customs Act 1901, specifically Part XVA, provides a framework for the issuance of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs (CEO). This Act applies to any person or entity that seeks to apply for a TCO in respect of goods. The primary focus is on ensuring that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business, which is defined under sections 269D and 269E. The scope of the Act extends nationally, as it applies across all jurisdictions within Australia. The application of the Act is restricted by section 269SJ, which lists goods that cannot be subject to a TCO. The Act also allows for the extension or restriction of its application through subordinate instruments, such as the Customs Tariff Act 1995, which specifies the applicable rates of duty. The geographic reach of this legislation is national, ensuring uniformity in the application of customs duty concessions across the country.
Key Provisions
The Tariff Concession Instrument No. 0619396 pertains to a Tariff Concession Order (TCO) under section 269F of the Customs Act 1901. This instrument applies to certain injectors for which Comalco Aluminium (Bell Bay) Ltd applied for a TCO on 8 December 2006. The key operative section here is section 269P(3) which mandates that if the Chief Executive Officer of Customs (CEO) is satisfied that the TCO application meets the core criteria, the CEO must issue a written order declaring that the goods in question are subject to a specified item of Schedule 4 to the Customs Tariff Act 1995. In this case, item 50 of the Tariff applies, reducing the duty rate from 5% to 0%.
Under this legislation, the CEO is obligated to assess whether the application meets the core criteria as outlined in section 269C of the Act. This requires that on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the CEO determines that no such substitutable goods exist, the CEO must then proceed to make a TCO as per section 269P(3). Additionally, as per subsection 269K(1) of the Act, the CEO must publish a notice in the Gazette inviting submissions from any person who might have reasons why the TCO should not be made. In this instance, no submissions were received in response to the published notice.
The Act imposes specific requirements on both the CEO and applicants. For the CEO, the key requirement is to ensure the TCO application meets the core criteria, which includes verifying that no substitutable goods are produced in Australia. The applicant, in this case Comalco Aluminium (Bell Bay) Ltd, must provide sufficient evidence to support their application and ensure it complies with the Act's stipulations. Subsection 269S(1) further stipulates that the TCO is considered to have come into force on the day the application was lodged, which in this case was 8 December 2006.
In terms of consequences, the Act does not impose any liabilities on any person other than the Commonwealth. The rights of importers are beneficially affected, and they can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force under paragraph 126(1)(r) of the Regulations. However, the Act does not disadvantage any person or impose liabilities on them in respect of anything done or omitted before the TCO's registration date. There are no explicit offences, penalties, or civil/criminal consequences stated in the provided text, but any breaches of the Act or Regulations could potentially lead to legal actions under the broader customs and tariff laws.