EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0812008
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.
Foamex Victoria Pty Ltd applied for a TCO in respect of certain expandable polystyrene pre expanders on 10 June 2008.
Instrument
TCO No 0812008 was made on 22 August 2008. It declares that those certain expandable polystyrene pre expanders 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. 0812008 is taken to have come into force on 10 June 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. 0812008 was enacted under the Customs Act 1901 to provide tariff concessions for certain expandable polystyrene pre expanders, addressing the gap where no substitutable goods were produced in Australia. The instrument was created in response to an application by Foamex Victoria Pty Ltd, seeking a tariff concession order (TCO) for these specific goods. The instrument was made by the Chief Executive Officer of Customs, who determined that no substitutable goods were produced in Australia, thereby meeting the core criteria for a TCO as outlined in section 269C of the Act. The policy objective was to ensure that the application of the concession does not disadvantage any person other than the Commonwealth, while also allowing importers to apply for a refund of duty on goods imported since the effective date of the TCO. The instrument came into force on 10 June 2008, the date the application was lodged, and did not impose any liabilities on any person.
Scope and Application
The Tariff Concession Instrument No. 0812008 applies to individuals or entities that have applied for and received a Tariff Concession Order (TCO) from the Chief Executive Officer of Customs under the Customs Act 1901. Specifically, this instrument relates to Foamex Victoria Pty Ltd's application for a TCO concerning certain expandable polystyrene pre expanders, where the CEO determined that no substitutable goods were produced in Australia. The TCO modifies the customs duty rate for these goods, applying a zero-rate duty as opposed to the general rate of 5%. The application of this Act is confined to the Commonwealth jurisdiction and extends to the goods specified in the TCO. The Act does not apply to goods listed in section 269SJ of the Customs Act 1901, which are ineligible for tariff concessions. Furthermore, the Act does not impose any new liabilities on persons other than the Commonwealth and does not affect the rights of individuals or entities as they stood before the date of registration of the TCO.
Key Provisions
The main operative sections of this legislation include section 269C, which sets out the core criteria that a Tariff Concession Order (TCO) application must meet, and section 269P, which mandates the creation of a written order if those criteria are satisfied. Specifically, section 269C stipulates that an application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged. Section 269P then requires the Chief Executive Officer of Customs (the CEO) to make a written order if the application meets these criteria, declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. This process is further governed by section 269K, which mandates that the CEO must publish a notice in the Gazette inviting submissions on the application, and section 269S, which specifies that the TCO is taken to have come into force on the day the application was lodged.
The Act imposes several obligations and requirements on the parties involved. For instance, any person who wishes to apply for a TCO must do so in accordance with section 269F, ensuring that the goods in question are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. Once an application is lodged, the CEO must assess whether it meets the core criteria as outlined in section 269C. If the application is deemed valid, the CEO must issue a written TCO as per section 269P, effectively declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. Additionally, under section 269K, the CEO is required to publish a notice in the Gazette, inviting any interested parties to lodge submissions regarding the application.
The legislation also outlines various consequences for non-compliance with its provisions. While the explanatory statement does not explicitly list offences or penalties, it is reasonable to infer that any failure to comply with the requirements for applying for or issuing a TCO could result in legal repercussions. For example, if an application is found to be in respect of goods specified in section 269SJ, the CEO would not be required to process it, potentially leading to legal disputes. Furthermore, any misuse or fraudulent application for a TCO could potentially be prosecuted under other relevant sections of the Customs Act 1901 or other applicable legislation, which could result in criminal or civil penalties. The specifics of these penalties would depend on the nature of the breach and the relevant laws under which the prosecution is conducted.