EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0815148
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.
Aci Operations Pty Ltd applied for a TCO in respect of certain glass bottle moulds adaptors and or guide plates on 30 June 2008.
Instrument
TCO No 0815148 was made on 19 September 2008. It declares that those certain glass bottle moulds adaptors and or guide plates 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. 0815148 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 Customs Act 1901 was enacted to regulate and control the importation and exportation of goods in Australia, ensuring that customs duties are levied and collected appropriately. In addressing a specific gap within this framework, Tariff Concession Instrument No. 0815148 was introduced by the Chief Executive Officer of Customs in 2008. This instrument aims to provide tariff concessions for certain goods, facilitating lower rates of customs duty for specific items not produced domestically. The Tariff Concession Order (TCO) No. 0815148, made applicable from 30 June 2008, grants free duty on certain glass bottle moulds adaptors and or guide plates, which were previously subject to a 5% duty rate. This concession was made on the basis that no substitutable goods were produced in Australia at the time of application, aligning with the core criteria outlined in the Customs Act. The instrument does not disadvantage any existing rights of importers, and instead, allows for potential refunds on duties paid before the concession's effective date.
Scope and Application
The Tariff Concession Instrument No. 0815148 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods that are imported into Australia. In this instance, the instrument pertains to certain glass bottle mould adaptors and guide plates, where the application was submitted by Aci Operations Pty Ltd. The Act mandates that for a Tariff Concession Order (TCO) to be considered, the goods in question must not have substitutable equivalents produced domestically, as per the criteria outlined in sections 269C and 269D of the Act. The geographic reach of this legislation is national, given that it operates under the federal Customs Act 1901. The TCO was made effective from the date the application was lodged, which was 30 June 2008, and it does not retroactively affect the rights of any parties other than the Commonwealth, nor does it impose any liabilities on individuals or entities other than the Commonwealth. This TCO specifically exempts the mentioned glass bottle mould adaptors and guide plates from the general 5% duty rate, setting their duty rate at free.
Key Provisions
The Tariff Concession Instrument No. 0815148 under the Customs Act 1901 primarily concerns the application and granting of Tariff Concession Orders (TCOs) (sections 269C, 269F, 269P). A TCO allows for a lower rate of customs duty on specific goods. The Act stipulates that an applicant may apply to the Chief Executive Officer (CEO) of Customs for a TCO if the goods are not listed in section 269SJ, which details those goods that cannot be subject to a TCO (section 269F). If the application meets the core criteria, the CEO must make a written order (TCO) declaring the goods to which a specific item in Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)).
The obligations under the Act require the CEO to ensure that the application does not concern goods specified in section 269SJ and that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). The CEO must also publish a notice in the Gazette inviting submissions from any person who may have reasons to oppose the TCO (subsection 269K(1)). This process ensures transparency and provides an opportunity for interested parties to voice their concerns.
In terms of breaches and penalties, the Act does not specify any criminal or civil penalties for failing to comply with the requirements to make a TCO application or for the CEO to process such an application. However, any failure to comply with the conditions or misuse of a TCO could potentially lead to legal consequences under other provisions of the Customs Act 1901 or related legislation. The primary consequence of not adhering to the Act's requirements is the inability to benefit from the tariff concessions, which could result in higher customs duties for the importer.
The commencement of a TCO is governed by subsection 269S(1), which states that a TCO is effective from the day the application is lodged (section 269S(1)). This means that any goods imported on or after this date will be subject to the reduced tariff rates specified in the TCO. It is also important to note that the TCO does not retroactively affect any rights or liabilities incurred before its effective date, thus protecting the interests of all parties involved (subsection 269S(1)).