EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0824360
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.
Csr Building Products Limited applied for a TCO in respect of certain brick dehacker and packaging line on 01 August 2008.
Instrument
TCO No 0824360 was made on 24 October 2008. It declares that those certain brick dehacker and packaging line 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. 0824360 is taken to have come into force on 01 August 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. 0824360, enacted in 2008, serves as an amendment to the Customs Act 1901 to address the need for tariff concessions for specific goods that are not produced domestically. This instrument was introduced to facilitate tariff reductions for imported goods under certain conditions, thereby enhancing trade efficiency and potentially benefiting the domestic market by making imported goods more competitively priced. The Tariff Concession Orders (TCOs) scheme, outlined in Part XVA of the Customs Act, allows the Chief Executive Officer of Customs to grant lower customs duties on goods specified in an application, provided that no substitutable goods are produced in Australia. The policy objective is to ensure that the domestic market does not suffer due to the concession while allowing for the importation of goods that are not domestically produced, thus supporting trade and economic interests.
Scope and Application
The Tariff Concession Instrument No. 0824360 applies to the import of certain brick dehacker and packaging line goods as defined under the Customs Act 1901, specifically under the provisions that allow for Tariff Concession Orders (TCOs). The Act applies to any entity or person seeking to import these goods into Australia and who can demonstrate that there are no substitutable goods produced in Australia at the time of application. The TCO provides a concession by reducing the customs duty on these goods from the general rate of 5% to a rate of zero, thereby benefiting importers of these goods. The instrument’s application is national, as it is an order under the Customs Act 1901, which is a Commonwealth Act. The TCO does not affect any existing rights or impose any liabilities on persons other than the Commonwealth in respect of actions taken before the date of the TCO's registration. There are no exclusions, exemptions, or thresholds specified within the text of this particular TCO, though the overarching Customs Act may contain such provisions. The scope of the Act can be extended or restricted through subordinate instruments, such as regulations or further TCOs, as deemed necessary by the Chief Executive Officer of Customs.
Key Provisions
The main operative sections of the Customs Act 1901, as applied in Tariff Concession Instrument No. 0824360, involve the establishment and administration of Tariff Concession Orders (TCOs). Section 269F allows for the application of a TCO for goods, which can result in a lower rate of customs duty. If the Chief Executive Officer (CEO) of Customs is satisfied that the application is valid and meets the core criteria outlined in sections 269C and 269P, they must make a TCO (sections 269P(3) and 269P(3)). This particular TCO, No. 0824360, pertains to certain brick dehacker and packaging line and applies item 50 of Schedule 4 to the Customs Tariff Act 1995, thereby setting the duty rate at free instead of the general 5%.
The Act imposes several obligations on the parties involved. Firstly, applicants must ensure their applications meet the criteria set out in section 269C, which necessitates that no substitutable goods are produced in Australia on the day the application was lodged. This is defined further by sections 269D and 269E. The CEO, upon accepting a valid application, has the responsibility to publish a notice in the Gazette inviting submissions from any interested parties (subsection 269K(1)). Although no submissions were received in this case, the CEO is required to consider any submissions made before proceeding with the TCO.
Should there be a breach of the Act’s provisions, the consequences can be both civil and criminal. The Act does not explicitly detail the specific offences, penalties, or consequences for breach in the provided text. However, general principles of administrative law and the specific terms of the Customs Act 1901 apply, which could include fines or other penalties as determined by relevant authorities. The severity of penalties would depend on the nature and extent of the breach, as well as any associated legal interpretations and precedents. The Act ensures that the rights of persons other than the Commonwealth are not adversely affected by the TCO, maintaining that no liabilities are imposed retroactively.