EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0804329
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.
Mullion Pty Ltd applied for a TCO in respect of certain hammer mills on 16 April 2008.
Instrument
TCO No 0804329 was made on 4 July 2008. It declares that those certain hammer mills 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. 0804329 is taken to have come into force on 16 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 Tariff Concession Instrument No. 0804329, enacted under the Customs Act 1901, was introduced to provide relief to certain hammer mills by granting tariff concessions. This legislative instrument was developed in response to an application made by Mullion Pty Ltd on 16 April 2008, seeking a tariff concession order (TCO) for their specific hammer mills. The Australian Parliament facilitated this measure to ensure that the application met the core criteria, particularly that no substitutable goods were produced in Australia. The tariff concession, which was subsequently approved and published in the Gazette on 4 July 2008, provides for these goods to be subject to a zero rate of duty, down from the general rate of 5%, effective from the date of application. This concession aims to support the competitiveness of Australian industries by reducing the cost of imported goods and does not impose any liabilities on individuals or entities, except for the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0804329 under the Customs Act 1901 applies specifically to goods that are the subject of a Tariff Concession Order (TCO). This legislation targets entities or individuals who wish to import goods into Australia and benefit from reduced customs duty rates, provided the goods are not of a type that cannot be subject to a TCO as specified in section 269SJ of the Act. The instrument extends its application nationally and is effective from the date the TCO application is lodged, in this case, 16 April 2008. The geographic reach is thus Commonwealth-wide, and it applies to all entities or individuals seeking to import the specified hammer mills into Australia. The Act provides for the CEO of Customs to make written orders reducing the customs duty rates for these goods, contingent on the absence of substitutable goods produced in Australia. The TCO does not disadvantage any person or impose new liabilities on them, protecting the rights of importers who may apply for a refund of duties paid on the goods since the effective date of the TCO.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0804329, under the Customs Act 1901, revolve around the process of granting tariff concessions for specific goods, in this case certain hammer mills. Section 269F allows for an application to be made to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO). Once the CEO determines that the application meets the core criteria as stipulated in section 269C, a TCO is issued under section 269P(3). This order effectively changes the customs duty rate for the specified goods from the general rate to a free rate, as outlined in item 50 of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes several obligations on the parties involved. Firstly, it requires any person wishing to apply for a TCO to submit an application to the CEO of Customs (section 269F). The CEO then has the duty to assess whether the application meets the core criteria, which include ensuring that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). If the CEO is satisfied that the core criteria are met, a written TCO must be issued (section 269P(3)). Additionally, as soon as practicable after accepting a valid application, the CEO must publish a notice in the Gazette inviting any person who believes the TCO should not be made to lodge a submission (subsection 269K(1)). In this instance, no submissions were received, thereby allowing the TCO to proceed.
Failure to comply with the provisions of the Customs Act 1901 could result in various consequences. While the explanatory statement does not explicitly detail offences or penalties, the general legal framework suggests that breaches of customs regulations could lead to civil or criminal penalties. These could include fines or imprisonment, depending on the severity and intent behind the breach. However, it is crucial to note that the specific penalties would be dictated by other sections of the Customs Act or related legislation.
The Tariff Concession Instrument No. 0804329 also ensures that the rights of persons, other than the Commonwealth, are not adversely affected by the issuance of the TCO. This means that any person who imported the goods in question before the TCO was issued is not subject to any new liabilities. Conversely, importers of such goods will benefit from the ability to apply for a refund of duty on goods imported since the TCO was taken to have come into force, as per paragraph 126(1)(r) of the Regulations. This provision aims to provide clarity and protection to all parties involved, ensuring that the tariff concession does not impose any new obligations or liabilities retroactively.