EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0800878
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.
Manildra Flour Mills Pty Ltd applied for a TCO in respect of certain distillers dried grains dryer on 15 January 2008.
Instrument
TCO No 0800878 was made on 04 April 2008. It declares that those certain distillers dried grains dryer 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. 0800878 is taken to have come into force on 15 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 Tariff Concession Instrument No. 0800878 was enacted under the Customs Act 1901 to facilitate tariff concessions for specific goods. This instrument was introduced to address the need for tariff relief on certain goods, ensuring that businesses can access essential imports without the burden of customs duty. The instrument was made on 4 April 2008, following an application by Manildra Flour Mills Pty Ltd for a tariff concession order (TCO) in respect of certain distillers dried grains dryers on 15 January 2008. The enacting body responsible for this instrument is the Chief Executive Officer of Customs, who assessed the application and determined that no substitutable goods were produced in Australia, thus meeting the core criteria for a TCO. This policy objective aims to support Australian businesses by reducing the cost of imported goods, thereby fostering economic efficiency and competitiveness.
Scope and Application
The Tariff Concession Instrument No. 0800878, made under the Customs Act 1901, applies to the goods specified in the instrument, namely certain distillers dried grains dryer, and the person who applied for the tariff concession, Manildra Flour Mills Pty Ltd. The Act provides a scheme for the Chief Executive Officer of Customs to make Tariff Concession Orders (TCO) which may result in a lower rate of customs duty for certain goods, provided that the application meets specific criteria, such as the absence of substitutable goods produced in Australia. The instrument has a Commonwealth reach, extending to the regulation of customs duties on goods imported into Australia. Exclusions apply to goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The instrument came into effect on 15 January 2008, the date the application for the TCO was lodged, and does not retroactively affect the rights or impose liabilities on any person other than the Commonwealth. The instrument can be extended or modified through subordinate instruments as necessary.
Key Provisions
The Tariff Concession Instrument No. 0800878, under the Customs Act 1901, introduces a tariff concession order (TCO) for certain distillers dried grains dryers, effective from 15 January 2008 (sections 269K and 269S). Section 269C of the Act requires that the Chief Executive Officer (CEO) of Customs must determine if the 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. In this case, the CEO was satisfied that the application met these criteria, leading to the issuance of the TCO on 4 April 2008. The TCO applies item 50 of Schedule 4 to the Customs Tariff Act 1995 to these goods, reducing the duty rate from the general rate of 5% to free of charge.
The obligations imposed by the Act on the parties involved primarily revolve around the application and assessment process for a TCO. Section 269F of the Act allows a person to apply for a TCO in respect of goods, provided they do not fall under the prohibited list outlined in section 269SJ. The CEO must then evaluate the application against the core criteria specified in sections 269C and 269P. Additionally, the CEO is required to publish a notice in the Gazette under subsection 269K(1) as soon as practicable after accepting a TCO application, inviting submissions from any person who believes the TCO should not be made. In this instance, no submissions were received.
Section 269S of the Act stipulates that the TCO is effective from the date the application was lodged, which in this case is 15 January 2008. The TCO does not affect the rights of any person, other than the Commonwealth, in a way that disadvantages them or imposes liabilities for actions taken before the TCO's registration. Importers of the affected goods will benefit from the concession, including the possibility of applying for a refund of duty on goods imported since the effective date under paragraph 126(1)(r) of the Regulations. Importantly, the TCO does not impose any new liabilities on any person.
In terms of consequences for breach, the Act does not specify any offences, penalties, or civil or criminal consequences for failing to comply with the TCO or its provisions. However, general provisions of the Customs Act 1901 and associated regulations would apply in cases of non-compliance with customs requirements, potentially leading to penalties such as fines or other enforcement actions.