EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0825982
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.
Dow Agroscience applied for a TCO in respect of certain tallow alkyl polyethoxylated amines on 11 August 2008.
Instrument
TCO No 0825982 was made on 31 October 2008. It declares that those certain tallow alkyl polyethoxylated amines 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. 0825982 is taken to have come into force on 11 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. 0825982, enacted in 2008 under the Customs Act 1901, was introduced to address the need for tariff concessions on specific imported goods, namely certain tallow alkyl polyethoxylated amines, by providing a lower rate of customs duty. This initiative was undertaken by the Chief Executive Officer of Customs (CEO) in response to an application from Dow Agroscience. The primary aim of this instrument is to facilitate the importation of these particular goods at a reduced duty rate, which aligns with the policy objective of promoting economic efficiency and competitiveness by alleviating the financial burden on importers. The instrument operates under the framework established by Part XVA of the Customs Act 1901, which allows the CEO to make Tariff Concession Orders when certain criteria are met, ensuring that no substitutable goods are produced domestically. The CEO's decision to issue this concession was based on the satisfaction that no such substitutable goods were being produced in Australia at the time the application was made.
Scope and Application
The Tariff Concession Instrument No. 0825982 applies to certain tallow alkyl polyethoxylated amines, specifically those identified in the application by Dow Agroscience, and it is governed under Part XVA of the Customs Act 1901. This instrument applies to any person seeking a tariff concession order (TCO) for specified goods that are not produced in Australia in the ordinary course of business, thereby qualifying them for a lower rate of customs duty. The instrument extends nationally, with its reach governed under the Commonwealth jurisdiction, and it is subject to the provisions of the Customs Act 1901 and the Customs Tariff Act 1995. The CEO of Customs must ensure that the goods in question do not fall under the exclusions listed in section 269SJ of the Act before granting a TCO. The TCO itself does not affect any existing rights or liabilities of individuals or entities other than the Commonwealth, and it does not impose any new liabilities. Subordinate instruments may further detail the specific conditions and procedures under which TCOs can be applied for and granted.
Key Provisions
The primary operative sections of this legislation are sections 269C, 269F, 269P, and 269S, which detail the application and approval process for Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO concerning goods, provided that the goods are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. Section 269C sets out the core criteria that the CEO must be satisfied with to approve an application; namely, that no substitutable goods were produced in Australia on the day the application was lodged. If these criteria are met, the CEO must make a written order (section 269P(3)) declaring that the goods in question are subject to a specified item in Schedule 4 to the Customs Tariff Act 1995, thereby granting the tariff concession.
The obligations imposed by this legislation primarily concern the application and review process for TCOs. An applicant must ensure their application complies with the core criteria outlined in section 269C and that the goods do not fall under the restrictions in section 269SJ. The CEO has the obligation to review the application and determine whether it meets the criteria. Additionally, once an application is accepted as valid, the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be granted, as required by section 269K(1). The CEO must also consider any submissions received in response to this notice.
The legislation does not explicitly detail specific offences or penalties for breaches related to TCO applications. However, it does imply that any actions taken under the authority of the Customs Act 1901 and its regulations could potentially be subject to the broader penalties and enforcement measures provided by the Act. These may include civil or criminal penalties for non-compliance with customs regulations, although the specific consequences would depend on the nature and extent of the breach.
Overall, this legislation provides a structured process for applying for and granting tariff concessions on specific goods, ensuring that the application process is transparent and allows for public input. It also specifies the conditions under which such concessions can be applied, thereby providing clarity and legal certainty for applicants and the CEO alike.