EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0803227
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.
The Trustee For The Aseri Trust applied for a TCO in respect of certain pipe fittings on 10 April 2008.
Instrument
TCO No 0803227 was made on 20 June 2008. It declares that those certain pipe fittings 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. 0803227 is taken to have come into force on 10 April 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, enacted by the Parliament of Australia, establishes a framework for the administration of customs and excise duties, including provisions for Tariff Concession Orders (TCOs) that provide reduced customs duty rates on certain goods. The Tariff Concession Instrument No. 0803227 was introduced to address the specific need of providing tariff concessions for certain pipe fittings, as requested by The Trustee For The Aseri Trust. The instrument was made under the authority of the Chief Executive Officer of Customs, who assessed and approved the application for a TCO, determining that no substitutable goods were produced in Australia at the time of application. Consequently, a concession was granted, setting the duty rate for these particular pipe fittings to zero, down from the general rate of 5%. This instrument came into effect on the date the application was lodged, 10 April 2008, without any submissions opposing the concession, and it ensures that the rights of importers are beneficially affected, allowing them to apply for refunds of duty paid on these goods since the effective date of the concession.
Scope and Application
The Customs Act 1901, specifically through Part XVA, provides a framework for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These TCOs apply to goods specified in the orders, providing a lower rate of customs duty than the general rate. The Act applies to individuals or entities seeking to import goods that meet the criteria set out in the Act, ensuring they are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. The application process requires the CEO to determine whether the goods in question are substitutable by Australian-made goods, a decision based on the definitions of "goods produced in Australia", "ordinary course of business", and "substitutable goods" as outlined in the Act. If the application meets the core criteria, the CEO issues a TCO, effective from the date the application was lodged. The legislation ensures that the rights of persons other than the Commonwealth are not adversely affected by the TCO, and importers can benefit from applying for duty refunds on goods imported since the TCO's effective date. This mechanism allows the Australian government to provide targeted tariff concessions while maintaining the integrity of the customs duty system.
Key Provisions
The primary sections of Tariff Concession Instrument No. 0803227, made under the Customs Act 1901, establish the framework for the application and approval of Tariff Concession Orders (TCOs) and outline the specific application to certain pipe fittings (sections 269C, 269F, 269P(3)). The Act allows for the application of lower customs duty rates to goods specified in a TCO, provided certain conditions are met (section 269F). The CEO of Customs must assess whether an application meets the core criteria, which includes ensuring that no substitutable goods are produced in Australia in the ordinary course of business (section 269C). If the CEO is satisfied that the application meets these criteria, a TCO is made, and the goods are subject to a lower rate of customs duty as specified in the Customs Tariff Act 1995 (section 269P(3)).
The Customs Act 1901 imposes several obligations on parties involved in the TCO process. The CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made (subsection 269K(1)). The CEO must also decide whether an application meets the core criteria based on the information provided (section 269C). Additionally, the TCO does not affect the rights of any person, other than the Commonwealth, as at the date of registration to disadvantage that person or impose liabilities in respect of anything done or omitted before the registration date (subsection 269S(1)).
Offences, penalties, or consequences for breach of the Customs Act 1901 are not explicitly stated in the provided text. However, the Act generally provides for various civil and criminal penalties for breaches of customs regulations. These penalties can include fines and imprisonment for serious offences. The exact penalties would depend on the specific nature of the breach and would be determined in accordance with the broader provisions of the Customs Act 1901 and other relevant legislation.