EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0815984
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.
Great Ocean Ingredients Pty Ltd applied for a TCO in respect of certain slurry filter on 04 July 2008.
Instrument
TCO No 0815984 was made on 03 October 2008. It declares that those certain slurry filter 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. 0815984 is taken to have come into force on 04 July 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. 0815984, enacted in 2008, was introduced under the Customs Act 1901 to address the need for tariff concessions on specific goods that are not produced in Australia. This legislative instrument allows for the reduction of customs duties on certain goods, provided they meet the criteria set out in the Act. The Australian Parliament enacted this Act to facilitate trade by reducing the cost of imported goods, thereby supporting economic growth and competitiveness. The core objective of this legislation is to ensure that goods not produced domestically are subject to a lower rate of customs duty, which can enhance the affordability and availability of these goods in the Australian market. The process involves an application to the Chief Executive Officer of Customs, who must determine if the application meets the core criteria before issuing a Tariff Concession Order (TCO). In this case, the CEO determined that the slurry filters applied for were not produced in Australia and thus qualified for the concession.
Scope and Application
The Tariff Concession Instrument No. 0815984 applies to the specific goods—certain slurry filters—as designated by Great Ocean Ingredients Pty Ltd, and to any entities or individuals importing these goods into Australia. The legislation falls under the purview of the Customs Act 1901, administered by the Chief Executive Officer of Customs, and aims to facilitate tariff concessions for particular goods that meet specified criteria. The concession applies nationally and is effective from the date the application was lodged, 04 July 2008. The Act stipulates that if no substitutable goods are produced in Australia, the CEO must grant the tariff concession, which in this case resulted in a reduction of the duty rate from 5% to free. Notably, the Act does not affect the rights of any person other than the Commonwealth, nor does it impose any liabilities on such persons. The TCO's application is subject to the exclusions and criteria outlined in the Customs Act 1901, particularly concerning goods that cannot be subject to a TCO as specified in section 269SJ of the Act.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0815984 are sections 269C, 269F, 269P(3), and 269S of the Customs Act 1901, which together establish the framework for Tariff Concession Orders (TCOs). Section 269F allows for an application to be made to the Chief Executive Officer of Customs (CEO) for a TCO in respect of certain goods, with the understanding that such a concession is subject to meeting specific criteria outlined in section 269C. Section 269P(3) specifies that if the CEO is satisfied that the application meets the core criteria, they must issue a written TCO. Section 269S(1) provides that a TCO is deemed to come into effect on the day the application is lodged, although in this case, the TCO was formally made on 3 October 2008.
The Act imposes several obligations on both the applicant and the CEO. For the applicant, the primary obligation is to ensure that the application for a TCO is valid and meets the core criteria set out in the Act. Specifically, the applicant must demonstrate that no substitutable goods are produced in Australia, as defined by sections 269D and 269E. For the CEO, the obligations include reviewing the application to determine if it meets the criteria, publishing a notice in the Gazette inviting any interested parties to submit objections, and making a decision on whether to issue a TCO. If the CEO decides to issue a TCO, they must do so in writing, as mandated by section 269P(3).
In terms of consequences for breach, the Customs Act 1901 does not explicitly outline specific offences, penalties, or civil/criminal consequences for failing to comply with the requirements of a TCO. However, the broader legal framework under which the Customs Act operates implies that non-compliance with regulations and orders could lead to enforcement actions by the Australian Border Force or other relevant authorities. The Tariff Concession Instrument itself does not specify any penalties, but general provisions within the Customs Act may apply to cases of non-compliance, potentially including fines or other administrative actions. The Act ensures that the rights of importers are protected, and they may apply for a refund of duty on goods imported since the TCO is deemed to have come into force, as per paragraph 126(1)(r) of the Regulations.