EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0815147
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.
Lion Nathan Australia Pty Limited applied for a TCO in respect of certain beer stabilisation adsorber colums on 30 June 2008.
Instrument
TCO No 0815147 was made on 19 September 2008. It declares that those certain beer stabilisation adsorber colums 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. 0815147 is taken to have come into force on 30 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. 0815147 was enacted in 2008 under the Customs Act 1901 to address the issue of imposing a lower rate of customs duty on specified goods that are not produced in Australia. The Customs Act 1901 provides for Tariff Concession Orders (TCOs) to be made by the Chief Executive Officer of Customs, which reduce the duty on certain goods to encourage their import and use in Australia. The legislation was introduced to provide a streamlined process for businesses to apply for reduced duty on goods that are not domestically produced, thereby potentially lowering costs and increasing the availability of certain products in the Australian market. The policy objective is to ensure that businesses can access goods that are not produced locally, thereby supporting economic activity and consumer choice.
The Tariff Concession Instrument No. 0815147 was enacted by the Parliament of Australia and was published in the Gazette to allow for any objections to be lodged. Lion Nathan Australia Pty Limited applied for the concession in respect of certain beer stabilisation adsorber columns, and the CEO was satisfied that the application met the criteria, as no substitutable goods were produced in Australia. The instrument came into effect on the date of application, 30 June 2008, and does not impose any liabilities on persons other than the Commonwealth. Importers of the specified goods can apply for a refund of duty paid since the effective date of the TCO.
Scope and Application
The Tariff Concession Instrument No. 0815147 under the Customs Act 1901 applies to the application of tariff concessions for certain beer stabilisation adsorber columns by Lion Nathan Australia Pty Limited. The instrument was made by the Chief Executive Officer of Customs and it specifies that these particular goods are to be subject to a reduced rate of customs duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, with the duty rate being free instead of the general rate of 5%. The legislation applies to the specific goods mentioned and those similarly situated, and its scope is limited to the concession of customs duty for these goods. The Act operates at the national level as it pertains to Commonwealth legislation. There are no exclusions or exemptions explicitly stated in the text, and the Act extends its application through subordinate instruments such as the Tariff Concession Orders. The TCO is effective from the date the application was lodged, which is 30 June 2008, and does not affect the rights of any person adversely, particularly ensuring that no liabilities are imposed on individuals or entities other than the Commonwealth.
Key Provisions
The Tariff Concession Instrument No. 0815147, as part of the Customs Act 1901, allows for the application of lower customs duty rates on specific goods through the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (section 269F). This concession applies when certain criteria are met, primarily that no substitutable goods are produced in Australia in the ordinary course of business on the day the application is lodged (section 269C). In the case of Lion Nathan Australia Pty Limited's application for certain beer stabilisation adsorber columns, the CEO determined that the goods did not have substitutable alternatives produced in Australia, leading to the issuance of TCO No. 0815147 on 19 September 2008. This order declares that these columns are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a duty rate of free, down from the general rate of 5%.
The Act imposes specific obligations on the CEO when considering a TCO application. Firstly, the CEO must ensure that the application does not concern goods specified in section 269SJ of the Act, which are ineligible for a TCO. Secondly, the CEO must determine if the application meets the core criteria outlined in section 269C. Additionally, as per section 269K(1), the CEO is required to publish a notice in the Gazette inviting any interested parties to submit reasons why the TCO should not be granted. In the instance of TCO No. 0815147, no submissions were received. Finally, the TCO is deemed to come into force on the date the application was lodged, which for this case was 30 June 2008 (subsection 269S(1)).
Breaching the provisions of the Customs Act 1901 or attempting to misuse the tariff concessions can lead to significant legal consequences. The Act does not explicitly state penalties for non-compliance with TCO provisions; however, general provisions under the Customs Act may apply, potentially involving fines or imprisonment. For instance, section 250-5 of the Customs Act includes penalties for fraud or other serious breaches, which could include substantial fines or imprisonment for up to five years. Furthermore, any misuse of the tariff concessions, such as by falsely claiming eligibility for the lower duty rates, could be considered an offence under the Crimes Act 1914, leading to additional criminal penalties.