EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0813997
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.
Syngenta Crop Protection Pty Limited applied for a TCO in respect of certain trifloxysulfuron sodium herbicides on 23 June 2008.
Instrument
TCO No 0813997 was made on 08 September 2008. It declares that those certain trifloxysulfuron sodium herbicides 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. 0813997 is taken to have come into force on 23 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 provide for the regulation of imports and exports, including the imposition of customs duty. It established a framework for granting tariff concession orders (TCOs) to provide relief from customs duty on certain goods, particularly those that are not produced domestically or have no suitable domestic alternatives. This legislative instrument, Tariff Concession Instrument No. 0813997, was introduced by the Parliament of Australia to address the need for reduced tariff rates on specific imported goods, in this case, certain trifloxysulfuron sodium herbicides, to promote fair trade practices and support industries that rely on imported inputs. The instrument was made under the authority of the Customs Act 1901, and its policy objective is to facilitate access to affordable imported goods by reducing the burden of customs duty, thereby supporting economic efficiency and competitiveness.
Scope and Application
The Tariff Concession Instrument No. 0813997, under the Customs Act 1901, applies to specific goods, namely certain trifloxysulfuron sodium herbicides, which are subject to a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs. This legislation is applicable to entities and individuals who import these herbicides into Australia, providing them with a concession on the customs duty that would otherwise apply. The Act operates on a Commonwealth level, extending its reach across the entirety of Australia, as the Customs Act 1901 is a federal statute. The TCO does not exclude any particular person or entity but rather specifically targets the named goods, ensuring they benefit from the reduced customs duty. Importantly, the TCO does not disadvantage any person by affecting their rights as at the date of registration, nor does it impose any new liabilities on anyone for actions taken prior to the registration date. Any existing or future rights of importers will be positively impacted, as they can apply for a refund of duty on goods imported since the TCO came into force.
Key Provisions
The Customs Act 1901, through Part XVA, outlines the process for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). A TCO can reduce the customs duty on certain goods, as specified by the CEO, provided the application meets the core criteria set out in section 269C of the Act. Specifically, the core criteria require that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269C(2)). To apply for a TCO, a person must submit an application to the CEO under section 269F, and the CEO must decide whether the application meets the core criteria as well as not being in respect of goods specified in section 269SJ, which are ineligible for a TCO.
Upon satisfying themselves that an application meets the core criteria, the CEO must make a written order, known as a TCO, specifying that the goods in question are subject to a prescribed rate of duty as set out in Schedule 4 to the Customs Tariff Act 1995 (section 269P(3)). The CEO is required to publish a notice in the Gazette inviting any person to submit objections or reasons why the TCO should not be made (subsection 269K(1)). However, in the case of TCO No. 0813997, the CEO did not receive any submissions. This TCO, which was made on 8 September 2008, relates to certain trifloxysulfuron sodium herbicides and specifies that the goods in question are subject to a duty-free rate, down from the general rate of 5%.
The TCO does not affect the rights of any person as at the date of registration in a manner that would disadvantage that person or impose any liabilities on a person in respect of actions taken prior to the date of registration. Instead, the rights of importers will be positively affected, as they can apply for a refund of duty on goods imported since the TCO is deemed to have come into force on the day the application was lodged (subsection 269S(1)). This TCO, therefore, imposes no liabilities and only benefits importers by potentially reducing their duty obligations on the specified goods.