EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0814053
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 cyproconazole fungicides on 23 June 2008.
Instrument
TCO No 0814053 was made on 01 September 2008. It declares that those certain cyproconazole fungicides 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. 0814053 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 Tariff Concession Instrument No. 0814053, enacted in 2008, is an instrument under the Customs Act 1901 designed to address the issue of tariff concessions for certain goods. Specifically, it was introduced to facilitate tariff concessions for goods that are not produced in Australia and for which there are no substitutable goods produced domestically. The instrument was enacted by the Chief Executive Officer of Customs, in accordance with the provisions of the Customs Act, which allow for the creation of Tariff Concession Orders (TCOs) to reduce the customs duty on specified goods. The policy objective behind this legislation is to provide relief to importers by reducing the duty on goods that are not produced in Australia and ensuring that Australian consumers and businesses have access to a wider range of affordable goods.
The instrument came into force on the date the application was lodged, 23 June 2008, and it does not disadvantage any person or impose new liabilities on anyone except the Commonwealth. Importers of the specified goods will be able to apply for a refund of duty on goods imported since the date the TCO came into force. This measure aims to support the competitive position of Australian businesses and consumers by lowering the cost of importing certain goods.
Scope and Application
The Customs Act 1901, through Part XVA, facilitates the establishment of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). The Act applies to any person or entity seeking a lower rate of customs duty for goods that meet specific criteria, provided these goods are not specified in section 269SJ of the Act, which excludes certain goods from TCOs. The application of a TCO hinges on the CEO's determination that no substitutable goods are produced in Australia in the ordinary course of business, as outlined in sections 269C and 269D. The geographic reach of this legislation is national, as it pertains to customs duties across Australia. Notably, the TCO does not affect the rights of any person except the Commonwealth, ensuring that no individual or entity other than the Commonwealth is disadvantaged or subjected to liabilities for actions taken prior to the TCO's registration. The CEO must publish a notice in the Gazette inviting submissions from interested parties, although no submissions were received for TCO No. 0814053, concerning certain cyproconazole fungicides, which came into effect on 23 June 2008.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, and 269P of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) in respect of goods, provided the goods are not specified in section 269SJ. Section 269C stipulates that the application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P mandates that if the CEO is satisfied the application meets the core criteria, they must make a written order (a TCO) specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods. The TCO in question, No. 0814053, declares that certain cyproconazole fungicides are goods to which item 50 of Schedule 4 applies, with a duty rate of free, as no substitutable goods were produced in Australia.
The obligations and requirements imposed by the Act on the parties or entities it governs are primarily centred around the application and approval process for TCOs. The CEO must ensure that the application is valid and that the goods do not fall under the exclusions specified in section 269SJ. Upon accepting a valid application, the CEO must publish a notice in the Gazette inviting any interested parties to submit their views on the application. This process ensures transparency and allows for public consultation. Furthermore, the CEO must determine whether the core criteria in section 269C are met before issuing a TCO. The TCO must be issued in writing and specify the applicable item of Schedule 4 to the Customs Tariff Act 1995.
Any breaches of the provisions outlined in the Customs Act 1901 and related regulations could result in civil or criminal consequences. While specific offences and penalties are not detailed in this particular legislation, general provisions under the Customs Act 1901 may include fines and imprisonment for contraventions. For instance, under section 245-50 of the Crimes Act 1914, a person can be fined up to 5,000 penalty units or imprisoned for five years, or both, for knowingly making a false statement in a document relating to customs. Similarly, under section 133-50 of the Crimes Act 1914, a person can be fined up to 10,000 penalty units or imprisoned for ten years, or both, for defrauding the Commonwealth. These penalties underscore the seriousness of compliance with customs regulations and the potential ramifications for non-compliance.