EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0829750
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 foamed bitumen module asphalt plant on 05 September 2008.
Instrument
TCO No 0829750 was made on 28 November 2008. It declares that those certain foamed bitumen 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. 0829750 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 Tariff Concession Instrument No. 0829750, enacted in 2008, amends the Customs Act 1901 by providing tariff concessions for certain foamed bitumen module asphalt plant. This legislative instrument was introduced to address the need for tariff concessions for goods that are not produced domestically, thereby encouraging the importation of such goods and potentially fostering economic benefits. The instrument was enacted by the Chief Executive Officer of Customs, as per the authority granted under section 269F of the Customs Act 1901. The policy objective of this instrument is to provide a tariff concession to ensure that the goods are accessible at a reduced duty rate, which in this case is free, as opposed to the general rate of 5%. This instrument was introduced following an application by Downer Edi Works Pty Ltd, and no objections were received from any party interested in the outcome of the application.
Scope and Application
The Tariff Concession Instrument No. 0829750, made under the Customs Act 1901, applies to any individual or entity seeking tariff concessions for specific goods, namely certain foamed bitumen module asphalt plants. This instrument allows for the reduction of customs duty on these goods from the general rate of 5% to a rate of zero. The application of this Act is limited to the particular goods specified in the instrument and extends to any person or entity involved in the importation of these goods into Australia. The geographic scope of the Act is national, applying across all states and territories of Australia. The Act does not apply to goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a tariff concession order. The application process involves a review by the Chief Executive Officer of Customs, who must ensure that the goods in question are not substitutable by any goods produced in Australia. This instrument came into force on the date of the application, 5 September 2008, and does not affect the rights of any person other than the Commonwealth regarding actions taken prior to its registration.
Key Provisions
The Tariff Concession Instrument No. 0829750, under the Customs Act 1901, primarily establishes the conditions and criteria for the application of a Tariff Concession Order (TCO) in respect of certain foamed bitumen module asphalt plant (section 269F(3)). A TCO, which is issued by the Chief Executive Officer of Customs (CEO), applies a lower rate of customs duty to goods that meet specific criteria. In this case, the CEO issued TCO No. 0829750 on 28 November 2008, following an application by Downer Edi Works Pty Ltd on 5 September 2008. The TCO declares that the foamed bitumen module asphalt plant are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with a duty rate of free, as opposed to the general rate of 5% (section 269P(3)).
The Act imposes specific obligations on both the applicant and the CEO. The applicant must ensure that the goods in question are not specified in section 269SJ of the Act, which excludes certain goods from TCO eligibility (section 269F). The CEO, in turn, is required to determine whether the application meets the core criteria outlined in section 269C, which includes verifying that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (section 269C). Furthermore, the CEO must publish a notice in the Gazette inviting submissions from any interested parties, although no submissions were received in this case (subsection 269K(1)).
Breaching the requirements or conditions outlined in the Customs Act 1901 or failing to comply with the obligations imposed by a TCO can result in various consequences. While the explanatory statement does not explicitly outline the specific offences or penalties, it is understood that breaches of the Act can lead to civil or criminal consequences under the general provisions of the Act. The penalties for such breaches can vary widely depending on the nature and severity of the offence, and may include fines or imprisonment as stipulated in the relevant sections of the Customs Act 1901. In this instance, the TCO does not impose any liabilities on any person, and it ensures that the rights of importers will be beneficially affected, allowing them to apply for a refund of duty on goods imported since the day the TCO came into force (paragraph 126(1)(r) of the Regulations).