EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0709659
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.
Bluescope Steel Ltd applied for a TCO in respect of certain refractory bricks and/or shapes on 21 June 2007.
Instrument
TCO No 0709659 was made on 14 September 2007. It declares that those certain refractory bricks and/or shapes 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. One submission objecting to the TCO application was received from Shinagawa Refractories Australasia Pty Ltd.
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. 0709659 is taken to have come into force on 21 June 2007.
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. 0709659, enacted under the Customs Act 1901, addresses the issue of tariff concessions for specific imported goods by providing a mechanism for the Chief Executive Officer of Customs to grant reduced customs duty rates. This instrument was introduced to facilitate tariff relief for certain refractory bricks and shapes applied for by Bluescope Steel Ltd, in response to the absence of substitutable goods produced domestically. The instrument was designed to ensure that the application of tariff concessions does not disadvantage any person other than the Commonwealth and does not impose liabilities on any person. It also allows importers to apply for a refund of duty paid on these goods since the date the tariff concession was taken to have come into force. This legislative instrument was enacted by the relevant authority within the Customs Act framework to streamline the process of applying for and receiving tariff concessions for specific imported goods, thereby promoting fair trade practices and providing economic benefits to importers.
Scope and Application
The Tariff Concession Instrument No. 0709659 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for certain refractory bricks and/or shapes. The Act permits the Chief Executive Officer of Customs to grant a Tariff Concession Order (TCO) to lower the rate of customs duty on specified goods, provided the application meets the criteria outlined in the Act. This includes ensuring that no substitutable goods are produced in Australia in the ordinary course of business. The instrument specifically addresses Bluescope Steel Ltd's application for TCO on refractory bricks and/or shapes, resulting in a zero percent duty rate for these goods, effective from 21 June 2007. The application process requires the CEO to publish a notice in the Gazette inviting objections, as demonstrated by the objection from Shinagawa Refractories Australasia Pty Ltd. The TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on individuals or entities for actions taken before the TCO's registration.
Key Provisions
The Tariff Concession Order (TCO) No. 0709659 under the Customs Act 1901 (section 269F) allows for a concession on customs duty for certain refractory bricks and shapes. The order was made on 14 September 2007 and specifies that these goods are subject to a 0% duty rate instead of the general 5% rate. This concession applies to goods that were the subject of an application made by Bluescope Steel Ltd on 21 June 2007. The decision to grant the TCO was based on the Chief Executive Officer of Customs (CEO) determining that no substitutable goods were produced in Australia at the time the application was lodged (section 269C).
The Act imposes certain obligations on the parties involved. For example, section 269K(1) requires the CEO to publish a notice in the Gazette inviting submissions from any interested parties once an application is deemed valid. This requirement ensures transparency and allows other stakeholders, such as Shinagawa Refractories Australasia Pty Ltd, who lodged an objection to the TCO, to voice their concerns. Additionally, section 269S(1) mandates that a TCO is considered effective from the date the application is lodged, in this case, 21 June 2007. The TCO ensures that it does not disadvantage any person or impose new liabilities on them in respect of actions taken before the TCO's effective date.
The Act also outlines potential consequences for non-compliance. Although the explanatory statement does not specify criminal penalties, it does indicate that the rights of importers are beneficially affected by the TCO. Specifically, under paragraph 126(1)(r) of the Regulations, importers can apply for a refund of duty on goods imported since the TCO's effective date. This provision ensures that importers who have already paid the higher duty rate can seek reimbursement. The statement confirms that the TCO does not impose any new liabilities on any person, reinforcing the principle that it only confers benefits without creating new obligations or penalties for those affected by the concession.