EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0827147
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.
Bronson & Jacobs Pty Ltd applied for a TCO in respect of certain sodium acid pyrophosphate on 19 August 2008.
Instrument
TCO No 0827147 was made on 07 November 2008. It declares that those certain sodium acid pyrophosphate 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. 0827147 is taken to have come into force on 19 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. 0827147, enacted in 2008, is an instrument under the Customs Act 1901, designed to address the gap in tariff concessions for certain goods. This instrument was introduced to provide relief on customs duties for specified goods, thereby facilitating trade and reducing costs for importers. The Customs Act 1901, enacted by the Australian Parliament, provides a framework for making Tariff Concession Orders (TCOs) through the Chief Executive Officer of Customs. The policy objective behind this legislation is to ensure that the application of customs duties is fair and considers the economic impact on businesses, particularly by lowering duties on goods for which no domestic substitutes are produced. In this specific case, Bronson & Jacobs Pty Ltd applied for a tariff concession on certain sodium acid pyrophosphate, resulting in a duty-free rate for these goods, effective from the date the application was lodged.
Scope and Application
The Tariff Concession Instrument No. 0827147, made under the Customs Act 1901, applies to Bronson & Jacobs Pty Ltd and specifically to certain sodium acid pyrophosphate. The instrument was created in response to an application made by the company on 19 August 2008, and it came into force on the same day, with the written order issued on 7 November 2008. The Act allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) to provide a lower rate of customs duty on specified goods, provided certain criteria are met, such as the absence of substitutable goods produced in Australia. The TCO affects the rights of importers of these goods, allowing them to apply for a refund of duty on imports since the TCO's effective date, while ensuring that no existing rights or liabilities of any person are adversely affected. The scope of this legislation is limited to the goods specified in the TCO and does not extend to other goods or industries unless similarly specified in other TCOs.
Key Provisions
The main operative sections of this legislation revolve around Tariff Concession Orders (TCOs) under the Customs Act 1901. Specifically, section 269F allows an individual or entity to apply to the Chief Executive Officer (CEO) of Customs for a TCO on certain goods. If the CEO is satisfied that the application is valid and does not pertain to goods that cannot be subject to a TCO (section 269SJ), they must then assess whether the application meets the core criteria outlined in section 269C. This requires that, on the date the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269D and 269E). If the application meets these criteria, the CEO must make a written order declaring the goods subject to the TCO and specifying the applicable rate of duty (section 269P(3)).
The obligations imposed by the Act on the parties involved are primarily on the CEO of Customs. The CEO must accept and assess valid TCO applications, determine whether the core criteria are met, and if so, issue a TCO. The CEO is also mandated to publish a notice in the Gazette inviting any person who might have objections to the TCO to lodge a submission (section 269K(1)). Additionally, the CEO must ensure that the TCO does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on individuals or entities for actions taken before the TCO's registration (subsection 269S(1)).
There are no specific offences or penalties outlined within the text of this legislation for breaching its provisions. However, any failure by the CEO to comply with the statutory obligations, such as improperly assessing an application or failing to publish the required notice, could potentially lead to legal challenges or administrative actions. Furthermore, if a TCO is issued improperly, it could result in financial implications for the Commonwealth or the entities involved due to incorrect duty assessments. The text does not specify any maximum penalties but indicates that the TCO does not impose liabilities on any person for actions taken before its registration.