EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0813299
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.
Carl Zeiss Vision Australia Holdings Ltd applied for a TCO in respect of certain acid wash glass mould cleaning machines on 18 June 2008.
Instrument
TCO No 0813299 was made on 01 September 2008. It declares that those certain acid wash glass mould cleaning machines 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. 0813299 is taken to have come into force on 18 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. 0813299 was enacted in 2008 under the Customs Act 1901 to provide a tariff concession for certain acid wash glass mould cleaning machines. This instrument was introduced to address the need for a lower rate of customs duty for these specific goods, thereby encouraging their importation and use within Australia. The Tariff Concession Order (TCO) was made by the Chief Executive Officer of Customs (CEO) following an application by Carl Zeiss Vision Australia Holdings Ltd, and it was established that no substitutable goods were produced in Australia at the time of the application. This instrument aims to benefit importers by providing a duty-free rate for these machines, thus facilitating their entry into the Australian market without the burden of customs duty.
The enactment of this TCO was overseen by the CEO in accordance with the legislative framework provided by the Customs Act 1901, particularly under section 269F, which allows for the application for a TCO, and section 269C, which stipulates the core criteria that must be met. The CEO's decision to grant the TCO was communicated through a notice published in the Gazette, inviting any interested parties to lodge submissions. As no submissions were received, the TCO was duly made and came into effect on 18 June 2008. The policy objective of this instrument is to support the importation of specialised machinery by reducing associated costs, thereby potentially fostering industrial growth and innovation in relevant sectors.
Scope and Application
The Customs Act 1901, specifically under Part XVA, provides a mechanism through which the Chief Executive Officer (CEO) of Customs can make Tariff Concession Orders (TCOs) for certain goods. This mechanism applies to any person or entity that applies for a TCO on behalf of goods that are not specified as ineligible under section 269SJ of the Act. The CEO evaluates applications based on whether the goods are substitutable by any goods produced in Australia in the ordinary course of business, as outlined in sections 269C, 269D, and 269E of the Act. If no substitutable goods are produced in Australia, the CEO must make a TCO, as seen in the case of TCO No. 0813299 made for certain acid wash glass mould cleaning machines on 18 June 2008. This order declares that these machines are subject to the conditions specified in item 50 of Schedule 4 to the Customs Tariff Act 1995, reducing the duty rate from the general 5% to free. The TCO, which came into force on the date of application, does not affect any pre-existing rights of non-Commonwealth persons nor impose any liabilities. Instead, it allows importers to apply for refunds on duties paid on imports of these goods since the TCO's effective date.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0813299 under the Customs Act 1901 (section 269F) establish the procedure for applying for a Tariff Concession Order (TCO) and the conditions under which the Chief Executive Officer (CEO) of Customs must consider these applications. Specifically, section 269F allows a person to apply for a TCO concerning goods, provided these goods are not specified in section 269SJ, which lists those goods that cannot be subject to a TCO. If the CEO is satisfied that the application meets the core criteria, as outlined in section 269C, a written order is to be made declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes certain obligations on both the applicant and the CEO. The applicant must ensure that their application is made in accordance with the Act and does not pertain to goods listed in section 269SJ. The CEO, on the other hand, is required to review the application to determine if it meets the core criteria (section 269C), which necessitates verifying that no substitutable goods were produced in Australia on the date the application was lodged. Furthermore, as per section 269K, the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made.
Failure to comply with the requirements of the Customs Act 1901 and the associated regulations can lead to various consequences. The Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach in the context of TCO applications. However, general provisions under the Act may apply, including potential administrative actions, fines, or other penalties for non-compliance. Additionally, there could be repercussions for misrepresenting information in the application process, which might lead to civil or criminal liability depending on the severity and intent behind the misrepresentation.