Overview

The Tariff Concession Instrument No. 0829756, made under the Customs Act 1901, was introduced to address the need for tariff concessions on specific goods, in this case, certain reclaimed asphalt pavement module asphalt plants. This instrument was enacted by the Chief Executive Officer of Customs following an application by Downer Edi Works Pty Ltd on 5 September 2008. The core purpose of this legislation is to provide a concession by reducing the customs duty rate from the general rate of 5% to free, effective from the date of the application. The instrument was made on 28 November 2008, after the CEO determined that no substitutable goods were produced in Australia, thereby meeting the criteria for a tariff concession order. The rights of importers are beneficially affected, allowing them to apply for a refund of duty on goods imported since the concession came into effect, while ensuring that no liabilities are imposed on any person other than the Commonwealth.

Scope and Application

The Customs Act 1901, specifically under Part XVA, governs the process through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO). The Act applies to applications for TCOs by any person seeking lower customs duty rates for specified goods, provided the goods do not fall under the restricted categories outlined in section 269SJ. The CEO evaluates each application to determine if it meets the core criteria, which include the absence of substitutable goods produced in Australia in the ordinary course of business. The CEO's decision to grant a TCO, as outlined in sections 269C and 269P, results in a written order specifying a reduced duty rate on the specified goods, as detailed in Schedule 4 of the Customs Tariff Act 1995. The instrument in question, TCO No. 0829756, was made on 28 November 2008, concerning reclaimed asphalt pavement module asphalt plant, and it came into force on the date of the application, 5 September 2008. The application process requires the CEO to publish a notice in the Gazette inviting any interested parties to submit objections, although no such submissions were received in this instance. Importantly, the TCO does not disadvantage any person other than the Commonwealth nor impose any liabilities on such persons.

Key Provisions

The primary operative sections of the legislation, specifically Tariff Concession Instrument No. 0829756, pertain to the granting of Tariff Concession Orders (TCOs) under section 269F of the Customs Act 1901 (the Act). An application for a TCO can be made by any person, and if it meets certain criteria, the Chief Executive Officer of Customs (the CEO) must make a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, thereby applying a reduced or free rate of duty. Specifically, section 269C of the Act stipulates that an application will meet the core criteria if, on the day it was lodged, no substitutable goods were produced in Australia in the ordinary course of business. For this purpose, section 269D defines 'goods produced in Australia', section 269E defines 'ordinary course of business', and section 269D further defines 'substitutable goods' in relation to the goods in question. The obligations imposed by the Act on the parties involved are primarily centred around the application and decision-making process for TCOs. For applicants, the obligation is to ensure their application is not in respect of goods specified in section 269SJ, which lists goods that cannot be subject to a TCO. The CEO’s obligations include accepting valid applications, determining if they meet the core criteria set out in section 269C, and, if satisfied, making a written order declaring the goods subject to a reduced duty rate. Additionally, the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application, inviting submissions from any person who believes the TCO should not be made, as required by subsection 269K(1) of the Act. The legislation also delineates the consequences of breaching the provisions of the Act or the terms of a TCO. While the explanatory statement does not explicitly list offences or penalties, breaches of the Customs Act 1901 or the associated regulations could lead to criminal or civil penalties. For instance, misleading or false statements in an application could potentially lead to fines or imprisonment under the general provisions of the Customs Act. The precise penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Customs Act and related regulations. However, the explanatory statement does clarify that the TCO does not affect the rights of any person as at the date of registration and does not impose any new liabilities on any person.