EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0719349
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.
Boral Formwork & Scaffolding Pty Ltd applied for a TCO in respect of certain multilayer sandwich panels on 13 November 2007.
Instrument
TCO No 0719349 was made on 1 February 2008. It declares that those certain multilayer sandwich panels 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. 0719349 is taken to have come into force on 13 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 Customs Act 1901, enacted by the Australian Parliament, provides a framework under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs. This legislation aims to address the gap in duty-free concessions for goods that are not produced in Australia and for which no suitable substitutes are available. Tariff Concession Instrument No. 0719349 was introduced to provide a tariff concession for certain multilayer sandwich panels, reducing the duty on these goods from 5% to free. The instrument was made following an application by Boral Formwork & Scaffolding Pty Ltd and came into force on 13 November 2007, the date the application was lodged. The policy objective of this TCO is to alleviate the financial burden on importers of these specific goods by providing them with a lower rate of customs duty, thereby facilitating trade and economic efficiency.
Scope and Application
The Tariff Concession Instrument No. 0719349 under the Customs Act 1901 applies to entities seeking tariff concessions on certain multilayer sandwich panels, specifically those produced by Boral Formwork & Scaffolding Pty Ltd. The Act provides a framework whereby the Chief Executive Officer of Customs can grant a Tariff Concession Order (TCO) to reduce customs duty rates on specified goods, provided no substitutable goods are produced in Australia. The concession granted under this instrument benefits importers by providing a duty-free rate for these particular goods, applicable from the date the TCO application was lodged. The scope of the TCO is limited to the specific goods detailed in the instrument, and its geographic reach is national, applying across Australia. The instrument does not disadvantage any person or impose new liabilities on entities, preserving the rights of individuals and businesses as they stood prior to the TCO's effective date. Furthermore, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections to the TCO, though none were received in this instance.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0719349 (referred to as TCO No. 0719349) pertain to the application and making of Tariff Concession Orders (TCOs) under the Customs Act 1901 (the Act). Specifically, section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of certain goods. If the application meets the core criteria outlined in sections 269C and 269P, the CEO must make a written order declaring that the goods are subject to a specified item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff). This process was followed in the case of Boral Formwork & Scaffolding Pty Ltd's application for a TCO on certain multilayer sandwich panels, leading to TCO No. 0719349 which was made on 1 February 2008. This instrument declares that the specified panels are subject to item 50 of Schedule 4 to the Tariff, reducing the duty rate from 5% to free.
The Act imposes specific obligations on parties and entities governed by it. For example, section 269C of the Act requires the CEO to determine whether an application for a TCO meets the core criteria, which includes ensuring that no substitutable goods were produced in Australia on the day the application was lodged. Furthermore, section 269K(1) mandates the CEO to publish a notice in the Gazette inviting submissions from any person who may have reasons why the TCO should not be made, although in this case, no submissions were received. Additionally, section 269S(1) specifies that a TCO is to be taken as having come into force on the date the application was lodged, which for TCO No. 0719349, was 13 November 2007.
The Act also delineates the consequences for breaches, though in the context of this particular TCO, there are no specific offences, penalties, or civil/criminal consequences outlined. However, the Act ensures that the TCO does not affect the rights of any person other than the Commonwealth, ensuring that no individual is disadvantaged or imposed with liabilities in respect of actions taken before the TCO's registration date. Importers, however, stand to benefit from this TCO as they can apply for a refund of duty on goods imported since the date the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations.