EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0812248
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.
Moly Metals Australia applied for a TCO in respect of certain ore stacking and reclaiming plant on 11 June 2008.
Instrument
TCO No 0812248 was made on 15 August 2008. It declares that those certain ore stacking and reclaiming plant 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. 0812248 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 Customs Act 1901 was enacted to facilitate and regulate the importation and exportation of goods into and out of Australia, ensuring that the necessary duties and tariffs are collected. The Act allows for Tariff Concession Orders (TCOs) to be issued by the Chief Executive Officer of Customs, providing a reduced rate of customs duty for specified goods. This mechanism was introduced to address the gap where certain goods that could not be produced in Australia might otherwise incur prohibitive customs duties, potentially hindering their import. This instrument, the Tariff Concession Instrument No. 0812248, was made by the Chief Executive Officer of Customs, in accordance with section 269P(3) of the Customs Act 1901, following an application from Moly Metals Australia for tariff concessions on certain ore stacking and reclaiming plant. The instrument was enacted to ensure that these specific goods, which are not produced in Australia, would benefit from a zero duty rate, thereby facilitating their import into the country. The Tariff Concession Order was issued without any submissions opposing the concession, and it came into effect from the date the application was lodged.
Scope and Application
The Tariff Concession Instrument No. 0812248, issued under the Customs Act 1901, pertains to the application and administration of Tariff Concession Orders (TCOs) that provide for a reduced rate of customs duty on specified goods. This legislation applies to any person or entity seeking a TCO for goods that are not specified in section 269SJ of the Act, which excludes certain goods from eligibility for tariff concessions. The scope of the Act extends to industries and transactions involving the importation of goods that qualify under the criteria set by the Chief Executive Officer of Customs (CEO). The Act operates on a national level, as it is a Commonwealth instrument. The application of the Act may be further defined or extended through subordinate instruments, such as regulations or other legislative instruments. Notably, the Act does not disadvantage or impose liabilities on any person other than the Commonwealth for actions taken prior to the date of registration of the TCO, thereby ensuring that only future imports benefit from the reduced duty rates established by the TCO.
Key Provisions
The primary sections relevant to the Tariff Concession Order (TCO) No. 0812248 under the Customs Act 1901 (sections 269C, 269F, and 269P) mandate the process by which the Chief Executive Officer of Customs (CEO) can grant a tariff concession for certain goods. Section 269F allows for the application of a TCO by any person, provided the goods are not listed in section 269SJ, which specifies goods that are ineligible for a TCO. The CEO must then determine if the application meets the core criteria as outlined in section 269C, which includes verifying that no substitutable goods are produced in Australia. If the application satisfies these criteria, the CEO must issue a TCO, as specified in section 269P(3).
The obligations imposed on parties under this Act primarily revolve around the process for applying for and receiving a TCO. Applicants must ensure their applications meet the criteria, particularly that no substitutable goods are produced in Australia. The CEO, in turn, must act promptly to assess applications, consider any submissions made, and make a decision based on the statutory criteria. The CEO is also required to publish notices in the Gazette inviting objections to proposed TCOs, as mandated by section 269K(1).
Failure to comply with the provisions of the Customs Act 1901 can result in civil or criminal penalties. For instance, incorrect claims for tariff concessions could be considered fraudulent, potentially leading to criminal charges under other sections of the Customs Act. While the explanatory statement does not specify penalties for breaches related to TCO applications, general penalties for customs offences can include fines up to $22,200 for individuals and significantly higher amounts for corporations, along with potential imprisonment. Additionally, incorrect declarations or fraudulent behaviour in relation to customs duties can lead to both civil and criminal consequences, including fines and imprisonment.
In summary, TCO No. 0812248, issued under the Customs Act 1901, allows for a tariff concession on certain ore stacking and reclaiming plant, provided the application meets specific statutory criteria and no substitutable goods are produced in Australia. The CEO is obligated to process applications and consider any objections, while applicants must ensure their applications comply with the legislative requirements. Breaches of the Act may result in significant penalties, reflecting the importance of adherence to customs regulations.