EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0719129
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.
Adept Conveyor Technologies Pty Ltd applied for a TCO in respect of certain modular curve chain drive conveyors on 12 November 2007.
Instrument
TCO No 0719129 was made on 30 January 2008. It declares that those certain modular curve chain drive conveyors 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. 0719129 is taken to have come into force on 12 November 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. 0719129 was enacted in 2008 under the Customs Act 1901 to address the need for tariff concessions on specific goods that are not produced in Australia and have no substitutable goods available domestically. This instrument was introduced to streamline the process through which businesses can apply for reduced customs duties on imported goods that are essential for their operations but cannot be manufactured locally. The Customs Act 1901 allows the Chief Executive Officer of Customs to grant Tariff Concession Orders (TCOs) when certain criteria are met, thereby providing relief to businesses that would otherwise incur higher duties on critical imported goods. The policy objective is to foster economic efficiency by ensuring that businesses have access to necessary goods at reduced costs, thereby supporting competitiveness and innovation in the Australian market. The instrument was published in the Gazette and no submissions were received opposing its creation, indicating broad acceptance of the tariff concessions granted.
Scope and Application
The Tariff Concession Instrument No. 0719129, issued under the Customs Act 1901, applies to the goods specified in the instrument, namely certain modular curve chain drive conveyors. The instrument is applicable to those who import these goods and benefits them by providing a tariff concession that effectively eliminates customs duty on these items. This instrument is part of a broader scheme under the Customs Act 1901 that allows for the application of lower rates of customs duty through Tariff Concession Orders (TCOs) for certain goods, provided they meet specific criteria. The CEO of Customs must determine whether the application for a TCO meets the core criteria, which include the absence of substitutable goods produced in Australia at the time the application is made. The instrument's application is national in scope and operates within the framework set by the Customs Act 1901, which is a Commonwealth Act, thus applying across Australia. The instrument does not impose any liabilities on persons other than the Commonwealth and does not disadvantage any person who had rights as at the date of the instrument's registration. Additionally, the CEO is required to consult with the public by publishing a notice in the Gazette, although in this instance, no submissions were received. The instrument comes into force on the date the application was lodged, providing immediate benefits to importers of the specified goods.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0719129 under the Customs Act 1901 (the Act) revolve around the establishment and application of Tariff Concession Orders (TCOs). Section 269F (2) allows for an application to be made to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods, provided certain criteria are met. Section 269C specifies that a TCO application meets the core criteria if, at the time of application, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, a written order declaring the goods subject to the TCO must be made.
The obligations and requirements imposed by the Act on parties governed by this legislation primarily concern the CEO and the applicants for TCOs. The CEO must ensure that applications for TCOs are processed in accordance with the criteria set out in section 269C and that any eligible applications result in the issuance of a written TCO as per section 269P(3). The applicants for TCOs must provide all necessary information and evidence to support their claims that the goods in question do not have substitutable alternatives produced in Australia and that they meet the definitions of "goods produced in Australia," "ordinary course of business," and "substitutable goods" as per sections 269D, 269E, and 269F respectively. Furthermore, under section 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made.
In terms of consequences for breach, the Act does not explicitly detail offences, penalties, or civil/criminal consequences for failing to comply with the requirements of a TCO or for submitting false information in an application. However, the integrity of the application process and the accuracy of the information provided are crucial, as incorrect applications or fraudulent submissions could lead to legal scrutiny or revocation of any granted concessions. The Act ensures that the rights of importers are beneficially affected by allowing them to apply for a refund of duty on goods imported since the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations. Importantly, the TCO does not impose any liabilities on any person other than the Commonwealth, safeguarding third parties from any adverse effects arising from the concessions granted.