EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0716567
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.
Siemens Ltd applied for a TCO in respect of certain air intake systems on 2 October 2007.
Instrument
TCO No 0716567 was made on 14 December 2007. It declares that those certain air intake systems 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. 0716567 is taken to have come into force on 2 October 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 was enacted by the Australian Parliament to regulate the importation and exportation of goods, including the imposition of customs duty. To address the need for tariff concessions on certain imported goods, Part XVA of the Act was introduced, allowing the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs). These orders provide for a lower rate of customs duty on specified goods, subject to certain criteria being met. The problem or gap this legislation was designed to address is the need to provide tariff relief on imported goods where no substitutable domestic product exists, thereby promoting fair competition and supporting Australian industries.
In the case of TCO No. 0716567, Siemens Ltd applied for a concession on certain air intake systems, which the CEO approved as meeting the core criteria. This decision resulted in a reduction of the duty on these goods from 5% to free, effective from the date of application on 2 October 2007. The instrument was registered on 14 December 2007, and no submissions were received opposing the order. This concession is intended to benefit importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO, without imposing any liabilities on any person.
Scope and Application
The Tariff Concession Instrument No. 0716567, made under the Customs Act 1901, applies to specific air intake systems for which Siemens Ltd applied for a tariff concession. This instrument facilitates the application of a lower rate of customs duty on these goods, reducing it to free from the general rate of 5%. The instrument is targeted at entities involved in the importation of these goods, specifically importers who stand to benefit from the tariff concession. The geographic reach of this legislation is national, as it pertains to the Customs Act, which is a Commonwealth Act. The Act extends its application to all goods imported into Australia, thereby encompassing the entire national jurisdiction. However, it excludes any goods specified in section 269SJ of the Customs Act, which are ineligible for tariff concessions. The application of the Act can be extended or restricted through subordinate instruments, such as the Customs Tariff Act 1995, which details the specific tariff schedules and duty rates.
Key Provisions
The key operative sections of the Customs Act 1901, as outlined in Tariff Concession Instrument No. 0716567, include sections 269C (269C), 269F (269F), 269P (269P), and 269S (269S). Section 269F allows an application to be made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) regarding goods. If the CEO is satisfied that the application meets the core criteria, including the absence of substitutable goods produced in Australia (as per section 269C), the CEO must make a written order (TCO). Section 269P(3) mandates that the CEO must declare the goods subject to the TCO to which a specified item of Schedule 4 to the Customs Tariff Act 1995 applies. Section 269S outlines that the TCO is to be taken as coming into force on the day the application for the TCO was lodged.
The obligations imposed by the Act on the parties or entities it governs primarily involve the application process and the CEO's decision-making responsibilities. An applicant must ensure that the goods for which a TCO is sought do not have substitutable equivalents produced in Australia and meet the criteria specified in the Act. The CEO must assess each application to determine if the core criteria are met and, if so, make a TCO. The CEO also has a duty to publish a notice in the Gazette inviting any submissions from persons who believe the TCO should not be made (subsection 269K(1)). This ensures transparency and provides a mechanism for interested parties to voice their concerns.
In terms of penalties and consequences, the Customs Act 1901 does not explicitly detail specific offences, penalties, or civil/criminal consequences within the provided text. However, it is implied that non-compliance with the provisions of the Act, such as submitting false information in an application or failing to meet the criteria for a TCO, could lead to legal repercussions. Given the nature of customs legislation, breaches might result in fines, penalties, or other enforcement actions as outlined in the broader customs regulations and other applicable laws. The absence of specific penalties in this context suggests that general legal frameworks and associated regulations would apply.