EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0808853
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.
Anglo Coal Australia Pty Ltd applied for a TCO in respect of certain underground conveyor drives on 19 May 2008.
Instrument
TCO No 0808853 was made on 08 August 2008. It declares that those certain underground conveyor drives 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. 0808853 is taken to have come into force on 19 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 Tariff Concession Instrument No. 0808853 under the Customs Act 1901 was enacted to address the need for tariff concessions on specific goods, ensuring that businesses can benefit from reduced customs duties where applicable. This instrument was introduced to streamline the process for applying for and granting tariff concessions for goods that are not produced domestically, thereby promoting trade efficiency and supporting Australian industries. The enactment was overseen by the Australian Parliament, with a clear policy objective to facilitate the importation of goods that are not locally produced, thus encouraging economic growth and competitiveness. The Customs Act 1901 provides a framework for the Chief Executive Officer of Customs to assess applications and grant tariff concessions where appropriate, ensuring that businesses can access necessary goods at reduced costs.
Scope and Application
The Tariff Concession Instrument No. 0808853, under the Customs Act 1901, applies to goods specified in the instrument, which in this case are certain underground conveyor drives, and is relevant to entities involved in the importation of these goods. The instrument was initiated by an application from Anglo Coal Australia Pty Ltd on 19 May 2008, and the Chief Executive Officer of Customs, upon being satisfied that the application met the core criteria, made the order on 8 August 2008. This legislation operates on a Commonwealth level and pertains to the importation of specific goods, granting them a tariff concession that reduces the customs duty from the general rate of 5% to free. The application process requires public notice, although in this instance, no submissions were received against the order. The instrument does not affect the rights of any person as they stood on the date of the application lodgement, and it specifically benefits importers who can apply for a refund of duty on goods imported since the date the concession is deemed to have come into force.
Key Provisions
The Customs Act 1901 provides a mechanism for the Chief Executive Officer of Customs (CEO) to make Tariff Concession Orders (TCOs) under section 269F (1). A TCO reduces the rate of customs duty on specific goods if the CEO determines that the application meets the core criteria set out in section 269C. Specifically, the CEO must be satisfied that no substitutable goods were produced in Australia on the day the application was lodged. In this instance, TCO No. 0808853 was made on 8 August 2008 in respect of certain underground conveyor drives, following an application by Anglo Coal Australia Pty Ltd on 19 May 2008. The TCO declares that these goods are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with a general duty rate of 5% reduced to free under the concession.
The Act imposes several obligations on parties seeking a TCO. Firstly, applicants must ensure that their application is not in respect of goods specified in section 269SJ, which lists goods that cannot be subject to a TCO. Secondly, the CEO must, as soon as practicable after accepting a TCO application, publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made, as stipulated in subsection 269K(1). In this case, no submissions were received in response to the published notice. Additionally, the Act ensures that the TCO does not disadvantage any person or impose liabilities on any person in respect of actions taken before the date of registration, although it does provide benefits to importers by allowing them to apply for a refund of duty on goods imported since the TCO came into effect.
The Act does not specify particular offences or penalties for breach of its provisions related to TCOs. However, general legal principles would apply if any aspect of the application process or the terms of the TCO were contravened. For example, if an entity were to make a false or misleading statement in their TCO application, they could potentially face legal consequences under provisions related to false statements or fraud, with penalties including fines and imprisonment as prescribed by other parts of the Act or related legislation. The specific consequences would depend on the nature and severity of the breach.