EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0829729
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.
Downer Edi Works Pty Ltd applied for a TCO in respect of certain drying and heating module asphalt plant on 05 September 2008.
Instrument
TCO No 0829729 was made on 28 November 2008. It declares that those certain drying and heating module asphalt 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. 0829729 is taken to have come into force on 05 September 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 was enacted to provide for the collection of customs duty and the regulation of imports and exports in Australia. The Tariff Concession Instrument No. 0829729, enacted in 2009, addresses the need for tariff concessions to be applied to specific goods, facilitating trade by reducing customs duty. The instrument was created under the authority of the Chief Executive Officer of Customs and follows the procedure set out in Part XVA of the Customs Act 1901, which outlines the process for making Tariff Concession Orders (TCOs). The primary policy objective of this legislation is to support Australian businesses by reducing the cost of importing certain goods that are not produced domestically, thereby encouraging economic growth and international competitiveness. The instrument was introduced after Downer Edi Works Pty Ltd applied for a tariff concession on drying and heating module asphalt plant, resulting in a concession that eliminated duty on these specific goods.
Scope and Application
The Tariff Concession Instrument No. 0829729 under the Customs Act 1901 applies to the importation of certain drying and heating module asphalt plants, specifically those identified in the instrument. This concession applies to any entity or individual importing these goods, thereby exempting them from the usual customs duty rates. The geographic reach of this Act is national, applying across Australia, as it pertains to the importation of goods into the country. The Act’s application is not restricted by state or territory boundaries and operates uniformly across the Commonwealth. However, it explicitly excludes any goods that are specified in section 269SJ of the Act, which are not eligible for tariff concessions. The application process and the criteria for tariff concession orders are defined within the Act, and the CEO of Customs has the authority to make such orders based on the criteria outlined in sections 269C, 269D, and 269E of the Act. The instrument also ensures that any rights of the Commonwealth or importers are preserved and that no liabilities are imposed on any person as a result of the concession.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0829729 under the Customs Act 1901 (the Act) are sections 269C, 269F, 269P, and 269S. Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO) in respect of goods. If the CEO is satisfied that the application meets the core criteria, they are required to make a written order under section 269P(3). Section 269C outlines the core criteria that a TCO application must meet, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269S specifies the commencement date of the TCO, which is the day the application for the TCO was lodged.
The obligations and requirements imposed by the Act on the parties governed by this legislation include the necessity for the CEO to ensure that the application for a TCO does not concern goods specified in section 269SJ, which cannot be subject to a TCO. Additionally, the CEO must determine whether the application meets the core criteria by confirming that no substitutable goods were produced in Australia on the day the application was made. The CEO must also publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made, as per section 269K(1). The CEO must act on these submissions if received. The Act ensures that the rights of a person, other than the Commonwealth, are not adversely affected by the TCO as at the date of registration, and it does not impose any liabilities on any person.
The Act includes provisions for offences, penalties, or consequences for breach. However, the Explanatory Statement does not specify any particular offences, penalties, or civil or criminal consequences related to breaches of this Instrument. In general, breaches of the Customs Act 1901 can lead to significant penalties, including fines and imprisonment. For instance, under section 244 of the Act, a person found guilty of an offence can be fined up to 10,000 penalty units or imprisoned for up to five years, or both, depending on the severity of the offence. It is essential for parties governed by the Act to ensure compliance to avoid these severe penalties.