EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0822560
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.
Bluescope Steel (AIS) Pty Ltd applied for a TCO in respect of certain Waste Gas Room Dedusting Electrostatic Parts on 23 July 2008.
Instrument
TCO No 0822560 was made on 17 October 2008. It declares that those certain Waste Gas Room Dedusting Electrostatic 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 10%. 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. 0822560 is taken to have come into force on 23 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. 0822560, enacted in 2008, pertains to the Customs Act 1901 and addresses the need for tariff concessions to foster competitiveness and efficiency within the Australian market. This legislative instrument was introduced to provide a lower rate of customs duty for specific goods, in this case, certain Waste Gas Room Dedusting Electrostatic Parts, upon the application and approval by the Chief Executive Officer of Customs. The objective is to ensure that such concessions are granted only if no substitutable goods are produced in Australia, thereby supporting domestic industries that cannot produce these goods domestically. The instrument was enacted by the Commonwealth of Australia and its policy objective is to facilitate trade by reducing customs duty for specified goods, thereby benefiting importers and maintaining a competitive edge for Australian industries.
Scope and Application
The Tariff Concession Instrument No. 0822560 under the Customs Act 1901 applies to goods specified in the instrument, namely certain Waste Gas Room Dedusting Electrostatic Parts, and to Bluescope Steel (AIS) Pty Ltd as the applicant for the concession. The instrument is applicable under the jurisdiction of the Commonwealth of Australia, and it operates to provide a lower rate of customs duty for the specified goods, which is set at zero percent, as opposed to the general rate of 10%. The legislation mandates that the Chief Executive Officer of Customs must consider applications for tariff concessions, ensuring that the goods in question are not substitutable by Australian-produced goods and meet the core criteria set out in the Act. The instrument does not disadvantage any person and does not impose any liabilities on anyone. It is also notable that the instrument extends its application to the date the application was lodged, which is 23 July 2008, and provides for the potential refund of duties paid on the importation of these goods since that date. Any exclusions or limitations are governed by the specific provisions of the Customs Act 1901 and related regulations.
Key Provisions
The Customs Act 1901, specifically under Part XVA, outlines the process for Tariff Concession Orders (TCOs), which are designed to apply lower rates of customs duty to certain goods. A TCO can be applied for by any person under section 269F, provided the goods in question are not prohibited under section 269SJ. The Chief Executive Officer of Customs (CEO) must then determine if the application meets the core criteria set out in section 269C. This involves confirming that no substitutable goods, as defined in section 269D, are produced in Australia in the ordinary course of business at the time the application is lodged. If these criteria are met, the CEO is required to issue a written order under section 269P(3), specifying that the goods in question are subject to a prescribed tariff item in the Customs Tariff Act 1995.
Entities subject to the Act must ensure that their applications for TCOs are valid and meet the criteria outlined in the Customs Act 1901. This involves thorough due diligence to confirm that no substitutable goods are being produced domestically. The CEO also has an obligation to publish a notice in the Gazette inviting submissions on the application, as per section 269K(1), though this step is largely procedural. The TCO itself is effective from the date the application is lodged, as per section 269S(1), and does not affect pre-existing rights or impose liabilities on third parties.
Under the Customs Act 1901, breaches or non-compliance with the requirements for issuing or applying for a TCO could potentially result in legal consequences. Although specific offences and penalties are not detailed in the Explanatory Statement, the Act generally provides for both civil and criminal penalties for breaches. Civil penalties can include fines up to a maximum specified in the Act, while criminal penalties can include imprisonment, reflecting the seriousness of non-compliance with customs regulations. The precise penalties would depend on the nature and severity of the breach, as outlined in the broader provisions of the Customs Act 1901.