EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0721786
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.
Oxley Brothers Pty Ltd applied for a TCO in respect of certain netting on 14 December 2007.
Instrument
TCO No 0721786 was made on 29 February 2008. It declares that those certain netting 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 10%. 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. 0721786 is taken to have come into force on 14 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 Customs Act 1901, enacted by the Australian Parliament, provides the framework for regulating the import and export of goods through the imposition of tariffs. The Act established a system whereby Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs to provide lower rates of customs duty on specified goods. This legislation was introduced to address the problem of ensuring that Australian industries have access to necessary goods at a reduced cost, thereby supporting economic growth and competitiveness. Specifically, the Tariff Concession Instrument No. 0721786 was introduced following an application by Oxley Brothers Pty Ltd for tariff concessions on certain netting, which was subsequently approved by the CEO after determining that no substitutable goods were produced in Australia. The policy objective here is to facilitate the import of goods that are essential for Australian industries without imposing undue burdens on other stakeholders.
Scope and Application
The Tariff Concession Instrument No. 0721786 applies to the customs duty on certain netting goods, allowing for a concession from the general duty rate of 10% to free duty under specific conditions. This legislation is a subset of the Customs Act 1901, which governs the administration of customs duties in Australia. The Act applies to any person or entity seeking tariff concessions for goods that are not produced in Australia in the ordinary course of business and have no substitutable goods available domestically. The scope of this Act is national, extending across all states and territories under the Commonwealth’s legislative authority. Importantly, the Act does not apply to goods specified in section 269SJ, which lists goods that are ineligible for tariff concessions. The process for granting tariff concessions involves an application to the Chief Executive Officer of Customs, who must determine whether the application meets the criteria set out in the Act. Once a Tariff Concession Order is made, it applies retroactively from the date the application was lodged, as per subsection 269S(1) of the Act. This legislative instrument ensures that the rights of importers are protected and can benefit from duty refunds on eligible goods imported since the effective date of the concession.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0721786 under the Customs Act 1901 (the Act) include sections 269C, 269D, 269E, 269F, 269K, 269P, and 269S. These sections govern the process of applying for and issuing a Tariff Concession Order (TCO) that lowers the customs duty on specific goods. Specifically, section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO for certain goods. If the CEO is satisfied that the application meets the core criteria, as defined in section 269C, and that the goods are not specified in section 269SJ, the CEO must issue a TCO. Section 269P(3) requires the CEO to publish a notice in the Gazette inviting submissions from interested parties, and section 269S(1) provides that the TCO comes into effect on the day the application is lodged.
The Act imposes several obligations and requirements on parties involved in the process. Firstly, the CEO must ensure that no substitutable goods are produced in Australia in the ordinary course of business on the day the TCO application is lodged, as per section 269C. Additionally, the CEO must publish a notice in the Gazette, inviting any person who believes the TCO should not be issued to submit their views, as per section 269K(1). The CEO must also consider any submissions received and decide whether to issue the TCO based on whether the application meets the core criteria. Furthermore, the TCO does not affect the rights of any person other than the Commonwealth as at the date of registration, ensuring that it does not disadvantage or impose liabilities on others, as per section 269S(4).
There are no explicit offences, penalties, or civil/criminal consequences stated for breaches of the TCO provisions within the provided text. However, it is worth noting that any misuse or non-compliance with the TCO conditions could potentially lead to legal consequences under other relevant Australian laws, such as the Customs Act 1901 and associated regulations. While the provided text does not specify penalties, breaches of customs regulations generally carry significant fines and potential imprisonment under the Act. For example, section 215 of the Customs Act imposes a maximum penalty of 10,000 penalty units or imprisonment for five years, or both, for various offences related to customs and excise.
In summary, the Tariff Concession Instrument No. 0721786 allows for the reduction of customs duty on certain goods through a structured process governed by specific sections of the Customs Act 1901. The CEO must ensure the criteria are met before issuing a TCO and must publish notices inviting submissions. The TCO process does not adversely affect the rights of any person other than the Commonwealth. While the text does not specify penalties for breaches directly, potential legal consequences may arise under other relevant laws.