EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0816489
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.
Simplot Australia Pty Limited applied for a TCO in respect of certain basket loading and unloading plant on 07 July 2008.
Instrument
TCO No 0816489 was made on 03 October 2008. It declares that those certain basket loading and unloading plant 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. 0816489 is taken to have come into force on 07 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. 0816489 was enacted in 2008 under the Customs Act 1901. This legislation was introduced to address the issue of ensuring that tariff concessions are appropriately applied to specific goods, in this case, certain basket loading and unloading plant, in a way that promotes economic efficiency and fairness. The Tariff Concession Orders (TCO) scheme, as outlined in Part XVA of the Customs Act, allows the Chief Executive Officer of Customs to apply reduced customs duties on goods that meet certain criteria, namely that no substitutable goods are produced in Australia in the ordinary course of business. The objective of this particular TCO, made on 3 October 2008, was to declare that the specified basket loading and unloading plant are subject to a free rate of duty, down from the general rate of 5%, upon satisfying the core criteria set by the Act.
The enactment and subsequent implementation of TCO No. 0816489 were conducted in accordance with the Customs Act 1901, ensuring that all procedural requirements were met, including publishing a notice in the Gazette and inviting submissions from interested parties, although none were received in this instance. The instrument came into force on the date the application was lodged, 7 July 2008, without any retroactive impact on existing rights or liabilities, thereby protecting the interests of all parties involved. This legislative action ultimately aims to enhance the efficiency of the Australian customs system by providing tariff relief where appropriate, while maintaining the integrity of the customs duty regime.
Scope and Application
The Tariff Concession Instrument No. 0816489, which amends the Customs Act 1901, pertains to the application and scope of Tariff Concession Orders (TCOs) for specific goods. This instrument applies to any person or entity that imports or intends to import the specified basket loading and unloading plant. The primary focus of the Act is to facilitate the importation of these goods by reducing the applicable customs duty rate from the general rate of 5% to free, provided that no substitutable goods are produced in Australia. The Act's jurisdiction extends across the Commonwealth of Australia, governed by the Customs Act 1901 and the Customs Tariff Act 1995. The Act excludes any goods specified in section 269SJ of the Customs Act 1901, which lists items ineligible for tariff concessions. The application of the TCO can be further defined or adjusted through subordinate instruments, ensuring the flexibility to address specific import scenarios or emerging market conditions.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0816489 include section 269C (269C) which outlines the core criteria that a Tariff Concession Order (TCO) application must meet. This section stipulates that a TCO 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(3) (269P(3)) provides that if the Chief Executive Officer (CEO) of Customs is satisfied that the application meets the core criteria, they must make a written order declaring that the goods in question are subject to a prescribed rate of duty as specified in Schedule 4 to the Customs Tariff Act 1995 (Tariff). In this case, the TCO No. 0816489 declares that certain basket loading and unloading plant are subject to item 50 of Schedule 4 of the Tariff, with a duty rate of free, down from the general rate of 5%.
The Act imposes several obligations and requirements on the parties involved. Firstly, section 269F (269F) allows a person to apply to the CEO for a TCO in respect of goods, provided the goods are not specified in section 269SJ (269SJ) of the Act, which lists goods that cannot be subject to a TCO. Secondly, section 269K(1) (269K(1)) requires the CEO to publish a notice in the Gazette as soon as practicable after accepting a TCO application, inviting any person who believes there are reasons why the TCO should not be made to lodge a submission. In this instance, the CEO did not receive any submissions in response to the published notice. Additionally, the CEO must ensure that 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 in respect of anything done or omitted to be done before the date of registration (subsection 269S(1) (269S(1))).
There are no specific offences or penalties mentioned in the explanatory statement for breaches of the Act in relation to the TCO. However, any failure to comply with the obligations and requirements of the Act, such as not following the application process or making a submission when invited to do so, could potentially lead to civil or administrative consequences. These might include the invalidity of the TCO or other administrative actions taken by the CEO of Customs. The exact consequences would depend on the nature and severity of the breach and would be determined by the relevant authorities under the Customs Act 1901 and associated regulations.