EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0721626
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.
Carter Holt Harvey Woodproducts Pty Limited applied for a TCO in respect of certain wood flake dryer on 18 December 2007.
Instrument
TCO No 0721626 was made on 07 March 2008. It declares that those certain wood flake dryers 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. 0721626 is taken to have come into force on 18 December 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. 0721626 was enacted in 2008 under the Customs Act 1901, with the aim of addressing the need for tariff concessions on specific imported goods. This legislation was introduced by the Parliament of Australia to provide relief on customs duties for certain goods that are not produced domestically. The primary objective, as stated in the explanatory statement, is to ensure that the application for tariff concession meets the core criteria, specifically that no substitutable goods are produced in Australia. This process involves the Chief Executive Officer of Customs who evaluates applications and makes written orders for tariff concessions when appropriate.
The enactment of this instrument reflects a policy objective to facilitate the importation of goods that are essential and not domestically produced, thereby reducing costs for businesses and consumers while ensuring that the domestic industry is not unduly disadvantaged. The instrument became effective on the date of application, 18 December 2007, and does not impose any liabilities on individuals or entities other than the Commonwealth. The rights of importers are positively impacted, allowing them to seek refunds for duties paid on the specified goods since the effective date.
Scope and Application
The Tariff Concession Instrument No. 0721626 under the Customs Act 1901 applies to the goods specified in the instrument, namely certain wood flake dryers, and is relevant to the entities or individuals importing these goods into Australia. The instrument was issued to Carter Holt Harvey Woodproducts Pty Limited, but its benefits extend to any importer of the specified goods. This instrument is part of the broader scheme under Part XVA of the Customs Act 1901, allowing the Chief Executive Officer of Customs to grant tariff concessions on certain goods. The instrument applies nationally across Australia and is subject to the conditions set out in the Customs Act 1901, including the core criteria that no substitutable goods were produced in Australia at the time of the application. The instrument excludes any goods specified in section 269SJ of the Act that cannot be subject to a TCO. The instrument does not affect any rights of persons as at the date of registration in a manner that would disadvantage them or impose liabilities for actions taken before the registration date. The TCO came into effect on 18 December 2007, the date the application was lodged. The instrument's application can be extended or restricted through subordinate instruments as necessary.
Key Provisions
The main operative sections of the Customs Act 1901, as applied to this Tariff Concession Instrument, include sections 269C, 269B, 269D, 269E, 269F, and 269SJ (sections referenced in parentheses). Section 269F allows an application for a Tariff Concession Order (TCO) to be made to the Chief Executive Officer of Customs (CEO). Section 269C sets out the core criteria that must be met for the CEO to consider the application, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Definitions for "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269B, 269D, and 269E respectively. If the CEO is satisfied that the application meets the core criteria, they are required under section 269P(3) to make a written TCO, specifying that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The obligations and requirements imposed by the Act on the parties involved include the submission of a valid TCO application by an interested party, as outlined in section 269F. The CEO is obligated to assess the application against the core criteria specified in section 269C and to make a decision based on this assessment. If the core criteria are met, the CEO must proceed to make the TCO as per section 269P(3). Additionally, the CEO must publish a notice in the Gazette, inviting any person who believes there are reasons why the TCO should not be made to lodge a submission, as required by subsection 269K(1). The CEO must also ensure that the TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on such persons in respect of actions taken before the date of registration.
The legislation includes provisions for offences, penalties, or consequences for breaches. While the explanatory statement does not specify civil or criminal penalties for non-compliance with the Act, it is understood that breaches of the Customs Act 1901 may lead to significant legal consequences. The maximum penalties for contravening the Customs Act can vary widely depending on the nature and severity of the offence. For example, penalties can include fines, imprisonment, or both. The specific penalties would be detailed in the relevant sections of the Customs Act 1901 and the Customs Regulations 1993. However, the explanatory statement confirms that the TCO does not impose any liabilities on any person and does not affect the rights of a person (other than the Commonwealth) as at the date of registration, ensuring that there are no liabilities or disadvantages arising from the application of the TCO.