EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0812065
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.
Boral Limited applied for a TCO in respect of certain impact hammer mill parts on 11 June 2008.
Instrument
TCO No 0812065 was made on 22 August 2008. It declares that those certain impact hammer mill parts 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. 0812065 is taken to have come into force on 11 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 Order No. 0812065, enacted in 2008 under the Customs Act 1901, was introduced to address the need for tariff concessions on specific goods that were not produced in Australia and had no substitutable goods available domestically. This legislation allows the Chief Executive Officer of Customs to grant concessions that lower the rate of customs duty on certain imported goods, provided they meet the specified criteria. Boral Limited applied for a tariff concession on certain impact hammer mill parts, which was subsequently approved, resulting in the parts being subject to a zero rate of duty rather than the general 5% rate. The order was made effective from the date of the application, 11 June 2008, and no objections were received during the consultation period. The policy objective of this legislation is to support industries by reducing the cost of imported goods that are not produced locally, thereby promoting economic efficiency and competitiveness.
Scope and Application
The Tariff Concession Instrument No. 0812065 under the Customs Act 1901 provides a framework for the application and approval of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This legislative instrument applies to any person or entity that seeks to import goods into Australia, provided these goods meet the criteria outlined in the Customs Act 1901. Specifically, the TCO applies to goods that are not substitutable by Australian-produced alternatives and which are not specified in section 269SJ of the Act. The geographic reach of this legislation is nationwide, applying across all jurisdictions within Australia. The instrument does not impose any disadvantages or liabilities on persons other than the Commonwealth and ensures that any rights of importers are preserved and potentially benefited. The commencement of this TCO, as specified in the Act, is effective from the date of the application, which in this case was 11 June 2008. The application of the TCO may be extended or further defined through subordinate instruments, allowing for adjustments and clarifications as needed.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0812065 under the Customs Act 1901 involve the application, assessment, and implementation of Tariff Concession Orders (TCOs). Section 269F of the Act allows any person to apply to the Chief Executive Officer (CEO) of Customs for a TCO in relation to specific goods. If the CEO is satisfied that the application pertains to goods not excluded under section 269SJ, they must assess whether the application meets the core criteria set out in section 269C. This criterion requires that on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If these conditions are met, the CEO is mandated under section 269P(3) to issue a written TCO declaring that the goods in question are subject to a specified tariff item in Schedule 4 of the Customs Tariff Act 1995.
The Act imposes several obligations on the parties involved. Firstly, the CEO of Customs is required to evaluate each application to determine whether it meets the core criteria. This involves verifying that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. Once an application is deemed to meet the criteria, the CEO must promptly issue a TCO. Additionally, under subsection 269K(1), the CEO must publish a notice in the Gazette inviting any interested party to lodge submissions if they believe the TCO should not proceed. In this instance, no submissions were received. The obligation to publish such notices ensures transparency and provides an opportunity for interested parties to voice their concerns.
Breaches of the provisions outlined in the Customs Act 1901 and the subsequent TCOs can lead to various civil and criminal consequences. Although the explanatory statement does not specify particular offences or penalties, the Act generally allows for enforcement actions against those who contravene its provisions. Offences under the Customs Act can result in substantial fines and, in severe cases, imprisonment. The exact penalties would depend on the specific breach and the discretion of the court. It is important for all parties involved to adhere strictly to the requirements set out in the Act to avoid potential legal repercussions.