EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0712631
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.
James Hardie Australia Pty Ltd applied for a TCO in respect of certain laminating and coating line on 07 August 2007.
Instrument
TCO No 0712631 was made on 12 October 2007. It declares that those certain laminating and coating line 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 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. 0712631 is taken to have come into force on 07 August 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. 0712631 was enacted in 2007 as part of the Customs Act 1901 to address the need for tariff concessions on certain imported goods. This instrument was introduced to provide relief by reducing or eliminating customs duty on specific goods under certain conditions, thus facilitating trade and potentially lowering costs for importers. The Customs Act 1901, as amended, allows the Chief Executive Officer of Customs to make Tariff Concession Orders if certain criteria are met, such as the absence of substitutable goods produced in Australia. This legislative measure aims to ensure that Australian businesses can access necessary imported goods more affordably, thereby supporting economic efficiency and competitiveness. The instrument reflects the policy objective of the Australian government to foster a conducive environment for trade through strategic tariff adjustments.
Scope and Application
The Tariff Concession Instrument No. 0712631, made under the Customs Act 1901, applies to entities or individuals seeking tariff concessions for specific goods, in this case, a certain laminating and coating line. The instrument is directly concerned with the application of tariff concessions to those goods that are not substitutable by products manufactured within Australia. The instrument is effective on the date of the application, which is 07 August 2007, and it provides that these particular goods will be exempt from the general customs duty of 5%, instead being subject to a duty-free rate. This applies across the Commonwealth of Australia as the Customs Act 1901 is a federal statute. The application process requires the Chief Executive Officer of Customs to ensure that the goods in question are not replaceable by Australian-made products, a determination made in accordance with the criteria set out in the Customs Act 1901. The instrument does not disadvantage any person or impose liabilities for actions taken before its effective date, and it allows for the possibility of duty refunds for importers of the specified goods since the commencement date.
Key Provisions
The key operative sections of the Customs Act 1901, as amended by the Tariff Concession Instrument No. 0712631, are sections 269C, 269P, and 269S. Section 269C outlines the core criteria that must be met for an application for a Tariff Concession Order (TCO) to be successful. Specifically, it mandates that no substitutable goods can be produced in Australia in the ordinary course of business on the day the application is lodged (s 269C). Section 269P requires the Chief Executive Officer (CEO) of Customs to make a written TCO if satisfied that the application meets these criteria (s 269P(3)). Section 269S stipulates that the TCO comes into force on the day the application is lodged (s 269S(1)).
The obligations imposed on the parties governed by this Act include ensuring that any application for a TCO is made in good faith and meets the specified criteria. The CEO is obligated to review the application, assess whether it meets the core criteria, and if satisfied, to make the TCO. Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to lodge submissions if they believe the TCO should not be made (s 269K(1)). Once the TCO is issued, it affects the rights of importers beneficially, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO (Regulations, para 126(1)(r)).
There are no explicit offences, penalties, or consequences for breach outlined in the explanatory statement for this particular Instrument. However, any failure to comply with the conditions set out in the TCO or the Act could potentially lead to civil or criminal consequences under the broader provisions of the Customs Act 1901, such as fines or imprisonment. The specific penalties would depend on the nature and severity of the breach and would be determined according to the relevant sections of the Act.