EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0812995
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.
Clark Equipment Australia Pty Ltd applied for a TCO in respect of certain roll on roll off cassette trailers on 16 June 2008.
Instrument
TCO No 0812995 was made on 22 August 2008. It declares that those certain roll on roll off cassette trailers 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. 0812995 is taken to have come into force on 16 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, enacted by the Parliament of Australia, provides for a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (CEO) to apply a lower rate of customs duty on certain goods. The Tariff Concession Instrument No. 0812995 was introduced to address the issue of applying tariff concessions on certain roll on roll off cassette trailers imported by Clark Equipment Australia Pty Ltd. The instrument was made on 22 August 2008, after the CEO was satisfied that no substitutable goods were produced in Australia in the ordinary course of business. The CEO published a notice in the Gazette inviting submissions against the application, but none were received. The TCO is taken to have come into force on the day the application was lodged, 16 June 2008, and does not affect the rights of any person as at the date of registration or impose any liabilities on any person. The policy objective of this legislation is to ensure that the tariff concessions apply to goods for which there are no substitutable goods produced in Australia, thereby promoting fair trade practices and benefiting importers.
Scope and Application
The Customs Act 1901, as amended, encompasses a framework within which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO). This legislation applies to any person or entity that seeks a tariff concession for specified goods that are imported into Australia. Such applications are subject to the CEO's determination based on whether the goods in question meet the core criteria stipulated in section 269C of the Act, which includes the absence of substitutable goods produced in Australia at the time of application. The geographic reach of this Act is national, as it applies to the entire Commonwealth of Australia. Notably, the Act excludes certain goods from being subject to a TCO, as outlined in section 269SJ. The application process involves a mandatory publication in the Gazette inviting submissions from interested parties, although no submissions were received in the case of TCO No. 0812995 concerning roll on roll off cassette trailers. The TCO itself does not affect any pre-existing rights or impose new liabilities on persons other than the Commonwealth, and it can be backdated to the date of application lodgement.
Key Provisions
The key provisions of the Tariff Concession Instrument No. 0812995 under the Customs Act 1901 primarily involve the application, approval, and implementation of a Tariff Concession Order (TCO) for certain roll on roll off cassette trailers (sections 269C, 269F, 269K, 269P, 269S). The CEO must determine whether an application for a TCO meets the core criteria, which includes ensuring that no substitutable goods are produced in Australia (section 269C). If the application meets the criteria, the CEO is required to issue a TCO that specifies the goods and the corresponding rate of duty, in this case, a free rate of duty for the specified trailers (sections 269F, 269P). The TCO was published in the Gazette, inviting submissions from any interested parties, although none were received (section 269K).
The Act imposes specific obligations on the CEO and applicants. The CEO must ensure that the application does not pertain to goods specified in section 269SJ, verify that no substitutable goods are produced in Australia, and issue a TCO if the application meets the core criteria (sections 269C, 269F, 269P). The applicant must submit a valid application detailing the goods and the reasons for the concession (section 269F). The CEO is also required to publish a notice in the Gazette, inviting submissions, although this did not yield any responses in this instance (section 269K).
Under the Customs Act 1901, failure to comply with the requirements for a TCO could result in legal consequences. While the specific offences and penalties are not detailed in this explanatory statement, breaches of customs legislation generally can lead to civil or criminal penalties, including fines and imprisonment. The maximum penalties would depend on the nature and severity of the breach, as outlined in the broader customs legislation and any relevant regulations.
The Tariff Concession Instrument No. 0812995 ensures that the rights of individuals, particularly importers, are protected. It explicitly states that the TCO does not disadvantage any person or impose liabilities for actions taken before the TCO was registered (subsection 269S(1)). Importers of the specified goods can apply for a refund of duty paid on those goods since the TCO's effective date, enhancing their rights under the Act. The instrument also clearly delineates that it does not impose any liabilities on any person, safeguarding against retroactive disadvantage.