EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0715912
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.
Visy Industries Australia Pty Ltd applied for a TCO in respect of certain aluminium foil on 20 September 2007.
Instrument
TCO No 0715912 was made on 11 December 2007. It declares that those certain aluminium foil 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. 0715912 is taken to have come into force on 20 September 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 Customs Act 1901, enacted by the Australian Parliament, includes provisions under Part XVA that enable the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) for specific goods. This mechanism was established to address the need for tariff concessions to ensure that certain goods can be imported at reduced or no customs duty, provided that there are no substitutable goods produced in Australia. The Tariff Concession Instrument No. 0715912, made on 11 December 2007, is an example of this process, as it grants tariff concessions for certain aluminium foil to Visy Industries Australia Pty Ltd, based on the CEO’s determination that no substitutable goods were produced in Australia. The instrument aims to benefit importers by allowing them to apply for a refund of duty on these goods imported since the TCO came into effect on 20 September 2007, while ensuring that no new liabilities are imposed on any person.
Scope and Application
The Tariff Concession Instrument No. 0715912 applies to goods specifically identified in the application by Visy Industries Australia Pty Ltd, namely certain aluminium foil, and those who import such goods into Australia. This instrument is made under the Customs Act 1901, and its application is confined to the geographic jurisdiction of Australia. The instrument operates by providing a concession on the customs duty applicable to the specified goods, which is contingent upon the fulfilment of core criteria as defined in the Act. Notably, the instrument does not apply to goods specified in section 269SJ of the Act, which are ineligible for tariff concessions. The instrument’s effect is retroactive to the date of the application, 20 September 2007, but it does not disadvantage any person other than the Commonwealth nor does it impose any liabilities for actions taken before its registration. The scope of this concession may be further detailed or modified through subordinate instruments issued under the authority of the Customs Act 1901.
Key Provisions
The Tariff Concession Order No. 0715912, made under section 269F of the Customs Act 1901, provides tariff concessions for certain aluminium foil. This legislation allows for a lower rate of customs duty on these goods, which is set at zero percent, compared to the general rate of five percent (sections 269P(3) and 269S(1)). The instrument was made on 11 December 2007, and it came into effect on 20 September 2007, the date the application was lodged (subsection 269S(1)). The CEO was satisfied that no substitutable goods were produced in Australia, thereby meeting the core criteria outlined in section 269C of the Act.
The obligations under this Act primarily involve the Chief Executive Officer of Customs (CEO) who must assess applications for Tariff Concession Orders (TCOs) and ensure they meet the core criteria as specified in section 269C. If the CEO determines that the application meets these criteria, a written order must be made, declaring the goods eligible for the tariff concession (section 269P(3)). Additionally, under subsection 269K(1), the CEO is required to publish a notice in the Gazette inviting submissions from interested parties regarding the application. In this case, no submissions were received.
Any person who fails to comply with the obligations outlined in the Act may face legal consequences. While the explanatory statement does not detail specific offences or penalties, breaches of customs regulations generally can lead to civil or criminal penalties. Such penalties may include fines, imprisonment, or both, depending on the severity of the breach and relevant provisions in the Customs Act and other related legislation. It is important for entities and individuals governed by this Act to adhere to the specified obligations to avoid these potential consequences.