EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0812997
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 Pty Ltd applied for a TCO in respect of certain tailings thickening and stacking plant on 17 June 2008.
Instrument
TCO No 0812997 was made on 01 September 2008. It declares that those certain tailings thickening and stacking 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. 0812997 is taken to have come into force on 17 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 regulate and control the import and export of goods within Australia, among other things. This Act provides a framework for the administration of customs duties and the facilitation of international trade. One specific mechanism within this framework is the Tariff Concession Order (TCO), which allows for a lower rate of customs duty on certain goods. The Tariff Concession Instrument No. 0812997, introduced in 2008, was developed to address a specific need identified by Moly Metals Australia Pty Ltd. This legislation was designed to provide tariff concessions for certain tailings thickening and stacking plant by reducing the customs duty from the general rate of 5% to free. The instrument was enacted to ensure that no substitutable goods were being produced in Australia at the time of application, thereby meeting the core criteria outlined in the Customs Act 1901. The policy objective of this legislation is to support Australian industries by providing financial relief on essential imported goods, thereby enhancing competitiveness and operational efficiency.
Scope and Application
The Customs Act 1901 provides a framework for the administration of customs and excise duties, and includes provisions for the making of Tariff Concession Orders (TCOs) under Part XVA. This legislation applies to any person or entity that seeks to import goods eligible for a tariff concession, provided that the goods do not fall under the specified exclusions outlined in section 269SJ of the Act. The process involves an application to the Chief Executive Officer of Customs (CEO), who must determine if the application meets the core criteria as defined in sections 269C, 269D, 269E, and 269F of the Act. If these criteria are satisfied, the CEO issues a TCO, which is effective from the date the application was lodged, as stipulated in subsection 269S(1) of the Act. Notably, the application process requires public consultation, with an invitation for submissions published in the Gazette, though in the case of TCO No. 0812997, no submissions were received. The TCO applies on a national level across Australia, benefiting the rights of importers by potentially reducing the duty rate on specified goods, without imposing new liabilities on any party.
Key Provisions
The Tariff Concession Instrument No. 0812997, which came into effect on 17 June 2008, is an important piece of legislation under the Customs Act 1901. It was created in response to an application by Moly Metals Australia Pty Ltd for certain tailings thickening and stacking plant to be subject to a Tariff Concession Order (TCO) (Section 269F). The instrument declares that these goods are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with a duty rate of free, instead of the general rate of 5% (Subsection 269P(3)). This tariff concession applies because the Chief Executive Officer of Customs (CEO) was satisfied that no substitutable goods were produced in Australia (Section 269C).
The Act imposes several obligations and requirements on the parties involved. Firstly, any person may apply to the CEO for a TCO in respect of goods (Section 269F). If the CEO is satisfied that the application meets the core criteria, which includes ensuring that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (Section 269C), the CEO must make a written order (a TCO) (Subsection 269P(3)). Additionally, the CEO must publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission (Subsection 269K(1)). However, in this case, the CEO did not receive any submissions in response to this invitation.
Failure to comply with the provisions of the Customs Act 1901 may result in various civil and criminal consequences. While the explanatory statement does not explicitly outline the penalties for non-compliance, it is important to note that breaches of the Customs Act may be subject to penalties under other sections of the Act or related legislation. It is advisable to consult the relevant sections of the Act and any associated regulations to determine the specific penalties applicable to the particular breach.