EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0823744
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.
Robe River Mining Co applied for a TCO in respect of certain wharf access gangways on 30 July 2008.
Instrument
TCO No 0823744 was made on 17 October 2008. It declares that those certain wharf access gangways 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. 0823744 is taken to have come into force on 30 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 Customs Act 1901, enacted by the Australian Parliament, provides a framework for the regulation of customs duties and includes provisions for Tariff Concession Orders (TCOs). These orders allow for reduced customs duty rates on certain goods, provided they meet specific criteria. The Tariff Concession Instrument No. 0823744, issued on 17 October 2008, exemplifies this mechanism. Robe River Mining Co applied for a TCO on 30 July 2008 concerning certain wharf access gangways, and the Chief Executive Officer of Customs was satisfied that no substitutable goods were produced in Australia, meeting the core criteria. As a result, the TCO declared that these gangways would be subject to a free duty rate under item 50 of Schedule 4 to the Customs Tariff Act 1995, down from the general rate of 5%. The instrument ensures that no rights of persons other than the Commonwealth are adversely affected, and importers can apply for duty refunds for imports made since the TCO's effective date.
Scope and Application
The Tariff Concession Instrument No. 0823744 applies to individuals or entities that seek to import specific goods into Australia, as outlined in the Customs Act 1901. This legislation pertains specifically to the application and subsequent granting of Tariff Concession Orders (TCOs) for certain goods, which allows for reduced or waived customs duties. The process involves an application to the Chief Executive Officer of Customs (CEO), who evaluates whether the application meets the core criteria stipulated in the Act. These criteria ensure that the goods in question are not substitutable with any goods produced domestically and are not among those excluded from tariff concessions. The instrument, once enacted, provides tariff relief for the specified goods, effectively reducing the duty rate from the general rate to free, as in the case of the wharf access gangways for Robe River Mining Co. The geographic reach of this legislation is national, as it is enacted under the Commonwealth Customs Act 1901, ensuring a uniform application across Australia. There are no exclusions or exemptions specified within this particular TCO, but the broader Act excludes certain goods from tariff concessions. Any further specification or restriction of the Act’s application is managed through subordinate instruments as necessary.
Key Provisions
The primary operative sections of this legislation concern the process and criteria for making Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO in respect of goods. The CEO must then determine if the application meets the core criteria specified in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (sections 269B and 269D). If the application meets these criteria, the CEO must make a written order declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (section 269P(3)). In this case, Robe River Mining Co applied for a TCO in respect of certain wharf access gangways on 30 July 2008, and the CEO made TCO No. 0823744 on 17 October 2008, which declared that these gangways are goods to which item 50 of Schedule 4 to the Tariff applies, resulting in a duty rate of free.
The Act imposes specific obligations and requirements on the parties involved. The CEO of Customs must assess the validity of TCO applications and determine if they meet the core criteria. This involves verifying that no substitutable goods were produced in Australia. Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to submit reasons why the TCO should not be made. In this instance, no submissions were received in response to the published notice. Once a TCO is made, it comes into force on the day the application was lodged, which in this case was 30 July 2008.
Under this legislation, any breach of the requirements or obligations could lead to civil or criminal consequences. However, the explanatory statement does not specify any particular offences, penalties, or consequences for breach in relation to TCOs. It is essential for entities applying for or affected by TCOs to ensure compliance with the provisions to avoid any potential legal ramifications. The absence of specified penalties in the explanatory statement implies that the consequences for non-compliance might be addressed in other sections of the Customs Act 1901 or related legislation.