EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0823747
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.
Dowding Reynard & Associates Pty Ltd applied for a TCO in respect of certain spiral separation plant on 30 July 2008.
Instrument
TCO No 0823747 was made on 24 October 2008. It declares that those certain spiral separation 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. 0823747 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 other charges. This Act was updated to introduce the scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs, addressing a need for flexibility in customs duty rates to support industry and economic activity. The explanatory statement outlines that Dowding Reynard & Associates Pty Ltd applied for a TCO concerning certain spiral separation plant, and after the CEO determined that no substitutable goods were produced in Australia, a TCO was issued on 24 October 2008. This instrument declared that the specified plant would be subject to a free rate of duty instead of the general rate of 5%, effective from the date of the application, 30 July 2008. The policy objective here is to provide tariff relief where appropriate, facilitating the importation of goods that are not domestically produced.
Scope and Application
The Tariff Concession Instrument No. 0823747 under the Customs Act 1901 applies to the concession of tariff rates on certain spiral separation plant as determined by the Chief Executive Officer of Customs. This applies to Dowding Reynard & Associates Pty Ltd, which applied for the tariff concession on 30 July 2008. The instrument specifies that the goods in question, which are certain spiral separation plant, are subject to a tariff rate of 5% as per item 50 of Schedule 4 to the Customs Tariff Act 1995, but the concession reduces this rate to free. The instrument operates on a national level, impacting the importation of these specific goods across Australia. There are no exclusions or exemptions specified in this particular instrument, though section 269SJ of the Customs Act 1901 outlines goods that cannot be subject to a tariff concession order. The application of this instrument is further governed by subordinate instruments which detail the specific conditions and criteria under which tariff concessions may be applied.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0823747 (TCO No. 0823747) under the Customs Act 1901 are sections 269C, 269F, and 269P. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) for certain goods, provided the goods are not specified in section 269SJ of the Act. Section 269C requires that a TCO application meets the core criteria, specifically, no substitutable goods were produced in Australia on the day the application was lodged. If the CEO is satisfied with the application under section 269P, they must issue a written TCO.
The obligations imposed by the Act on the parties governed by the TCO are primarily on the CEO of Customs. The CEO must ensure that any application for a TCO is not in respect of goods specified in section 269SJ of the Act, and must determine whether the application meets the core criteria as outlined in section 269C. The CEO must also publish a notice in the Gazette inviting submissions if there are reasons why the TCO should not be made, as per section 269K(1). Dowding Reynard & Associates Pty Ltd, the applicant, must provide sufficient information to satisfy the CEO that no substitutable goods were produced in Australia on the application date.
There are no explicit offences or penalties stated in the explanatory statement for breach of the TCO provisions. However, if any party fails to meet the obligations outlined in the Act, such as the CEO not properly assessing an application or an applicant providing misleading information, this could lead to the TCO not being issued, thereby affecting the tariff concession intended for the goods. The general rate of duty on the goods remains at 5% unless the TCO is successfully issued, and the TCO does not disadvantage any person's rights or impose liabilities on anyone in respect of actions taken before the TCO was registered.