EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0806264
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.
CSR Building Products Limited applied for a TCO in respect of certain drying carousel roof tiles loaders and or unloaders on 1 May 2008.
Instrument
TCO No 0806264 was made on 11 July 2008. It declares that those certain drying carousel roof tiles loaders and or unloaders 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. 0806264 is taken to have come into force on 1 May 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 Commonwealth Parliament, establishes a framework for the regulation of imports and exports, including the imposition of customs duty on imported goods. The Act was introduced to address the need for a systematic approach to the collection of customs duty and the regulation of trade. Part XVA of the Customs Act 1901 facilitates the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs, providing a mechanism for granting tariff concessions on certain goods, thereby reducing the duty payable on those goods. The policy objective behind this provision is to support Australian industries by making imported goods more competitive, thereby encouraging local production where feasible and providing relief where imported goods are necessary and have no local substitute.
The Tariff Concession Instrument No. 0806264, issued on 11 July 2008, exemplifies this policy in action by granting a tariff concession on certain drying carousel roof tiles loaders and unloaders, reducing the duty from 5% to free. This concession was granted after the CEO was satisfied that no substitutable goods were produced in Australia, thereby meeting the core criteria specified in the Customs Act 1901. The instrument took effect from 1 May 2008, the date the application was lodged, and no submissions opposing the concession were received during the consultation period.
Scope and Application
The Tariff Concession Instrument No. 0806264 under the Customs Act 1901 applies specifically to the goods identified in the instrument, namely certain drying carousel roof tiles loaders and unloaders. This instrument is designed to provide tariff concessions for these goods, effectively reducing the customs duty rate from the general rate of 5% to zero. The act applies to the entities or individuals importing these goods, and it is enforced by the Chief Executive Officer of Customs (CEO), who assesses and grants tariff concession orders (TCO) based on the application criteria outlined in the Customs Act 1901. The instrument operates under the jurisdiction of the Commonwealth, with its scope and application limited to the specified goods as defined in the Customs Tariff Act 1995. The act does not apply to goods specified in section 269SJ of the Customs Act 1901, which are ineligible for tariff concessions. The application of this TCO is effective from the date the application was lodged, which was 1 May 2008, and it does not retroactively affect the rights of any person or impose any liabilities on anyone for actions taken prior to the registration date.
Key Provisions
The main operative sections of this legislation, specifically Tariff Concession Instrument No. 0806264, include sections 269C, 269F, 269K, 269P, and 269S of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). If the CEO is satisfied that the application meets the core criteria as stipulated in section 269C, they must make a written order (TCO) that specifies the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question. Section 269K requires the CEO to publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. Section 269P(3) mandates that the CEO must make a TCO if satisfied that the application meets the core criteria. Lastly, section 269S(1) specifies that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged.
This Act imposes several obligations and requirements on the parties involved. The CEO must ensure that applications for TCOs are processed in accordance with the criteria set out in section 269C of the Customs Act 1901. This involves determining whether the goods in question are substitutable by any goods produced in Australia in the ordinary course of business. If the CEO finds that no such substitutable goods exist, they must make a TCO as per section 269P(3). Additionally, the CEO must publish a notice in the Gazette under section 269K, inviting submissions from any interested parties regarding the application. CSR Building Products Limited, the applicant in this case, must provide all necessary information to the CEO to facilitate the assessment of their TCO application.
Breach of the obligations imposed by this legislation could result in various consequences. Firstly, if the CEO fails to process an application in accordance with the Act, this could lead to legal challenges from interested parties or the applicant. Additionally, if the CEO incorrectly determines that a TCO should be granted when it should not have been, this could lead to financial losses for the Commonwealth or other stakeholders. There are no specific penalties outlined in the text for breach of these obligations; however, any legal challenges or financial repercussions would likely stem from the consequences of incorrect TCO decisions.
In summary, this legislation outlines the process for applying for and granting Tariff Concession Orders under the Customs Act 1901. The CEO must assess applications and make decisions based on the criteria set out in the Act. Failure to comply with these obligations could result in legal challenges or financial losses for the Commonwealth or other stakeholders. While specific penalties for breach are not mentioned in the text, the potential consequences of incorrect decisions are significant.