EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0814290
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.
Caterpillar Of Australia applied for a TCO in respect of certain earth moving machines idlers parts on 24 June 2008.
Instrument
TCO No 0814290 was made on 08 September 2008. It declares that those certain earth moving machines idlers parts 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. 0814290 is taken to have come into force on 24 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 Order (TCO) No. 0814290 was enacted in 2008 as part of the Customs Act 1901 to provide tariff concessions for certain goods. This instrument was developed to address the issue of ensuring competitive pricing and accessibility of certain goods within Australia, by reducing the duty on specific items. The enacting body for this legislation is the Chief Executive Officer of Customs, who has the authority to make such orders under section 269F of the Customs Act 1901. The policy objective of this legislation is to facilitate the importation of goods that are not substitutable by locally produced items, thus encouraging trade and economic growth. The TCO came into effect on the date the application was lodged, 24 June 2008, and provides a zero-rate duty on certain earth moving machines idlers parts, which otherwise have a 5% duty rate.
Scope and Application
The Tariff Concession Instrument No. 0814290 under the Customs Act 1901 applies to goods that are the subject of a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs (CEO). Specifically, this instrument pertains to certain earth-moving machines idler parts for which Caterpillar of Australia applied for a TCO. The Act governs the process by which such applications can be made, ensuring that the goods in question are not substitutable by Australian-produced items and meet the core criteria set out in section 269C of the Act. The geographic reach of this legislation is national, as it pertains to customs duties across Australia, and the application of the TCO is effective from the date the application was lodged, 24 June 2008. Notably, the TCO does not impose any liabilities on persons other than the Commonwealth and does not disadvantage anyone with respect to actions taken before the registration date. Importers of these goods may benefit from a refund of duty under the relevant regulations, enhancing their rights without incurring new liabilities.
Key Provisions
The Tariff Concession Order (TCO) No. 0814290, as set out in the Customs Act 1901, specifically addresses the application of tariff concessions to certain goods. Section 269F allows for an application to the Chief Executive Officer (CEO) of Customs for a TCO in respect of specified goods, provided these goods do not fall under the exclusions outlined in section 269SJ. The CEO is tasked with determining whether the application meets the core criteria, which include verifying that no substitutable goods are being produced in Australia at the time the application is made (section 269C). If the CEO is satisfied that the application meets these criteria, they must then issue a written TCO, specifying that the goods in question will be subject to a reduced tariff rate as outlined in Schedule 4 of the Customs Tariff Act 1995 (subsection 269P(3)).
Under this Act, the CEO has specific obligations when considering an application for a TCO. Firstly, the CEO must ensure that the application is valid and does not pertain to goods that are excluded from tariff concessions (section 269SJ). Once an application is deemed valid, the CEO must publish a notice in the Gazette inviting any interested parties to submit objections or reasons why the TCO should not be granted (subsection 269K(1)). In the case of TCO No. 0814290, no submissions were received, allowing the CEO to proceed with issuing the TCO. The CEO must also consider definitions such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" as outlined in sections 269D, 269E, and 269F respectively.
In terms of penalties and consequences for non-compliance with the provisions of the Customs Act 1901 and the associated TCO, the Act does not explicitly detail specific offences or penalties for breaches related to the TCO process itself. However, general penalties for non-compliance with customs regulations can include fines and potential criminal charges for more severe infractions. For example, under the Crimes Act 1914, persons can face penalties for offences such as smuggling or making false statements, which can include substantial fines and imprisonment. Additionally, civil penalties may be imposed for incorrect or fraudulent claims related to duty refunds or tariff concessions, as governed by the relevant sections of the Customs Act 1901 and associated regulations.