EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0800663
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.
John Holland Pty Ltd applied for a TCO in respect of certain lining form and fixing plant on 11 January 2008.
Instrument
TCO No 0800663 was made on 04 April 2008. It declares that those certain lining form and fixing plants 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. 0800663 is taken to have come into force on 11 January 2008.
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, as amended, provides a framework for the administration of customs duties, including the ability to make Tariff Concession Orders (TCOs) under Part XVA. Enacted by the Commonwealth Parliament, this legislation aims to provide relief from certain customs duties for specific goods, facilitating trade and economic activities by reducing the cost of imported goods. Tariff Concession Instrument No. 0800663 was introduced to address the specific need for tariff concessions on certain lining form and fixing plants, ensuring that these goods could be imported at a reduced duty rate when no substitutable goods were produced in Australia. The policy objective was to support industries reliant on these imports by making them more cost-effective and competitive within the domestic market. The instrument was made on 4 April 2008, following an application by John Holland Pty Ltd on 11 January 2008, and came into force on the date of application. The instrument did not receive any objections and is designed to benefit importers by allowing them to claim refunds for duties paid on these goods imported since the effective date.
Scope and Application
The Tariff Concession Instrument No. 0800663 under the Customs Act 1901 applies to the application for tariff concession orders (TCOs) concerning specific goods, in this instance certain lining form and fixing plants, that are sought by an entity, such as John Holland Pty Ltd. The Act applies to the Chief Executive Officer of Customs (CEO) who is responsible for deciding whether to make a TCO based on the application submitted by a person. The TCO scheme is designed to provide a lower rate of customs duty on goods that meet the criteria set out in the Act. The geographic reach of the Act is national, as it pertains to the Commonwealth of Australia, with the CEO acting on behalf of the Commonwealth. There are exclusions, as outlined in section 269SJ of the Act, which specifies goods that cannot be subject to a TCO. The application of the Act may be extended or restricted through subordinate instruments, such as the Customs Tariff Act 1995, which provides the schedule of duty rates applicable to goods under the TCO. The TCO does not affect any existing rights or impose new liabilities on persons other than the Commonwealth.
Key Provisions
The key provisions of Tariff Concession Instrument No. 0800663 under the Customs Act 1901 are contained within section 269C (2), (3) and (4) (subsections 269P(3), 269K(1) and 269S(1)). Section 269C(2) stipulates that a Tariff Concession Order (TCO) application is valid if it meets the core criteria, which are outlined in section 269C(3) and (4). The CEO must make a written order (TCO) if satisfied that the application meets these criteria. Section 269P(3) details the conditions under which the CEO can issue a TCO, and section 269K(1) requires the CEO to publish a notice in the Gazette inviting submissions regarding the TCO application. Section 269S(1) establishes the effective date of the TCO as the date the application was lodged.
The obligations imposed by the Act on the parties involved primarily concern the process of applying for and obtaining a TCO. The CEO is required to ensure that the application meets the core criteria set out in section 269C(3) and (4) and to publish a notice in the Gazette as per section 269K(1). John Holland Pty Ltd, the applicant, must submit a valid application and provide any necessary documentation to support their case. The Act also stipulates that the TCO does not affect the rights of any person other than the Commonwealth as at the date of registration, nor does it impose any liabilities in respect of actions taken before the date of registration.
The Act includes specific provisions regarding the potential consequences of breaches. While the Explanatory Statement does not explicitly detail offences or penalties for non-compliance, the Customs Act 1901 generally provides for both civil and criminal penalties for breaches. Civil penalties can include fines, while criminal penalties may involve imprisonment or fines, depending on the severity of the breach. The maximum penalties would be determined by the relevant sections of the Customs Act 1901 and any associated regulations. Any failure to comply with the provisions for applying for and processing a TCO could potentially lead to such penalties, although the specific consequences would depend on the nature of the breach.