EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0713090
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.
Horizon Glass Pty Ltd applied for a TCO in respect of a certain laminated safety glass production line on 16 August 2007.
Instrument
TCO No 0713090 was made on 29 October 2007. It declares that those certain laminated safety glass production lines 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. 0713090 is taken to have come into force on 16 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. 0713090, enacted under the Customs Act 1901, aims to address the problem of ensuring that Australian businesses can access necessary imported goods without being overly burdened by customs duties. This instrument was introduced to provide tariff concessions, thereby promoting fair competition and economic efficiency within the Australian market. The Customs Act 1901, enacted by the Commonwealth Parliament, establishes the legal framework for customs duties and concessions, including the process for applying for tariff concession orders (TCOs). The policy objective of this instrument is to facilitate the import of goods by reducing customs duties where appropriate, thereby supporting the growth and competitiveness of Australian industries. This legislative measure ensures that businesses can access essential imported goods at a lower cost, provided certain conditions are met, such as the absence of substitutable goods produced in Australia.
Scope and Application
The Customs Act 1901 applies to any person or entity seeking to import goods into Australia, as well as the Chief Executive Officer of Customs who administers the tariff concession scheme. Specifically, the Act provides a framework for the creation of Tariff Concession Orders (TCOs), which apply to goods that are subject to a lower rate of customs duty than the general rate. The application of a TCO is contingent upon the goods being imported and not having any substitutable goods produced in Australia in the ordinary course of business. The CEO of Customs must make a written order if the application meets the core criteria. The scope of the legislation extends nationally and impacts the importation of goods, particularly those specified in Schedule 4 to the Customs Tariff Act 1995. Any exclusions are narrowly defined, such as goods specified in section 269SJ of the Customs Act 1901, which are ineligible for a TCO. The Act allows for further definition and regulation through subordinate instruments, which can extend or restrict the application of the legislation.
Key Provisions
The main operative sections of the Customs Act 1901, relevant to this Tariff Concession Order (TCO), include sections 269C, 269F, and 269P. Section 269C sets out the core criteria that a TCO application must meet, which is determined by the Chief Executive Officer of Customs (CEO) based on whether substitutable goods are produced in Australia. Section 269F allows a person to apply for a TCO in respect of goods, and Section 269P(3) mandates that if the application meets the core criteria, the CEO must make a written order declaring the goods subject to the TCO.
The obligations and requirements imposed by this Act on parties or entities it governs include the necessity for the CEO to assess TCO applications against the specified criteria and publish notices in the Gazette inviting submissions from any interested parties. The CEO must also ensure that TCOs do not disadvantage any person (other than the Commonwealth) as at the date of registration or impose liabilities in respect of actions taken before the registration date. The Act requires that the rights of importers are beneficially affected, allowing them to apply for a refund of duty on goods imported since the TCO is deemed to have come into force.
The legislation also outlines the consequences for breaches. While specific offences and penalties are not detailed in the explanatory statement, the Act would typically impose civil or criminal penalties for non-compliance with its provisions. The maximum penalties would depend on the specific breach and the applicable laws, but they could include fines or other sanctions as determined by the courts.
Overall, the Act provides a structured process for the application and assessment of TCOs, ensuring that the rights of importers are protected while also considering the broader implications for the Australian economy and industry. The absence of submissions in response to the published notice indicates a lack of opposition to the TCO, reinforcing its validity and compliance with the legislative framework.