EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0718544
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.
Water Corporation applied for a TCO in respect of certain self loading crane lorries on 30 October 2007.
Instrument
TCO No 0718544 was made on 24 January 2008. It declares that those certain self loading crane lorries 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. 0718544 is taken to have come into force on 30 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 Tariff Concession Instrument No. 0718544 was enacted in 2008 as part of the Customs Act 1901 to facilitate tariff concessions on certain goods, thereby addressing the need for reduced customs duty rates for specific imported items under certain conditions. The Customs Act 1901 establishes a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislative instrument was designed to provide tariff relief for goods that do not have Australian-made substitutes, thereby promoting the importation of goods that are not produced domestically. The Australian Government, through its Parliament, enacted this legislation to streamline the process for applying for and granting tariff concessions, ensuring that the application process is transparent and accessible while balancing the interests of domestic producers and importers.
The explanatory statement for Tariff Concession Instrument No. 0718544 details the application process, criteria for concession, and the policy objectives underpinning the legislation. The Water Corporation applied for a TCO for certain self-loading crane lorries, and after meeting the core criteria set out in the Act, the CEO issued TCO No. 0718544, which came into force on 30 October 2007. This concession reduced the duty rate from 5% to free, benefiting importers by potentially allowing them to claim refunds on duties paid prior to the effective date of the concession. Importantly, the TCO does not affect existing rights or impose new liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0718544 under the Customs Act 1901 applies to the specific goods identified in the instrument, namely certain self-loading crane lorries, which have been granted tariff concessions. This instrument is enacted by the Chief Executive Officer of Customs and applies to those who import these particular goods into Australia, thereby granting them a lower rate of customs duty. The application of this instrument is federal in nature, falling under the jurisdiction of the Commonwealth. The instrument specifically excludes any goods that are listed in section 269SJ of the Act, which details those goods that cannot be subject to a TCO. The application process requires that no substitutable goods are produced in Australia in the ordinary course of business on the day the application was lodged. The instrument also extends its reach through the Customs Tariff Act 1995, which is referenced in Schedule 4 to set the prescribed duty rates. The commencement of the instrument is retroactive to the date the application was lodged, 30 October 2007, ensuring that it does not disadvantage any person or impose liabilities for actions taken prior to its registration.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0718544 are sections 269C, 269F, 269P, and 269S, which detail the process for applying for and granting Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO is satisfied that the application is not in relation to goods specified in section 269SJ, which outlines those goods that cannot be subject to a TCO, the CEO must decide if the application meets the core criteria as stated in section 269C. If the CEO is satisfied that the application meets these criteria, they must make a written order as a TCO (section 269P).
The Act imposes several obligations and requirements on the parties involved. The CEO must ensure that any TCO application not concerning goods specified in section 269SJ meets the core criteria set out in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business. This involves a thorough review of the application to confirm that no suitable alternatives are manufactured domestically. Additionally, under section 269K, the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any person who believes the TCO should not be made to lodge a submission with the CEO. This transparency measure ensures that all interested parties have the opportunity to voice their concerns.
Regarding penalties and consequences, the Customs Act 1901 does not explicitly outline specific offences, penalties, or consequences for breaches related to the TCO process within this instrument. However, general provisions within the Act suggest that any breaches of customs regulations could result in penalties. For instance, under section 247, penalties for offences related to customs and excise could include fines and imprisonment, although the exact penalties would depend on the specific nature and severity of the breach. It is crucial for applicants and the CEO to adhere to the requirements and obligations set out in the Act to avoid any potential penalties.