EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0829775
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 integrated asphalt storage module asphalt plant on 05 September 2008.
Instrument
TCO No 0829775 was made on 28 November 2008. It declares that those certain integrated asphalt storage 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. 0829775 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, enacted by the Parliament of Australia, provides a framework for the administration of customs duties and the regulation of imports and exports. The Tariff Concession Instrument No. 0829775, introduced in 2008, addresses the gap in the legislative framework by enabling the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) that provide tariff concessions for specific goods. The instrument was introduced to facilitate the import of goods that are not produced domestically, thus ensuring that Australian consumers and businesses have access to a diverse range of products at competitive prices. The policy objective is to promote trade efficiency and economic growth by reducing customs duties on certain imported goods, thereby benefiting importers and potentially lowering consumer prices.
Scope and Application
The Tariff Concession Instrument No. 0829775, made under Part XVA of the Customs Act 1901, applies to specific goods that are the subject of a Tariff Concession Order (TCO) issued by the Chief Executive Officer of Customs (CEO). This instrument is relevant to entities or individuals who import goods that are affected by the order, specifically integrated asphalt storage module asphalt plant. The geographic reach of this Act is national, as it pertains to customs and tariffs within Australia. The Act does not specify exclusions or exemptions, but it is pertinent to note that certain goods outlined in section 269SJ of the Customs Act 1901 cannot be subject to a TCO. The CEO's decision to grant a TCO is subject to meeting core criteria, such as the absence of substitutable goods produced in Australia at the time of the application. The Act's application may be further extended or restricted by subordinate instruments, such as regulations, which can provide additional detail on the administration and enforcement of the tariff concessions.
Key Provisions
The key provisions of the Tariff Concession Instrument No. 0829775, made under the Customs Act 1901, establish a framework for the reduction or exemption of customs duty on specific goods. Section 269F allows an applicant to request a Tariff Concession Order (TCO) from the Chief Executive Officer of Customs (CEO) if certain conditions are met. Once the CEO receives an application, section 269C requires the CEO to determine whether the application meets the core criteria, which include ensuring that no substitutable goods are produced in Australia (section 269D and 269E). If the CEO is satisfied that the application meets these criteria, they are mandated by section 269P(3) to issue a written TCO, specifying the reduced duty rate.
Under this particular TCO No. 0829775, the CEO issued an order effective from 5 September 2008, which applies to certain integrated asphalt storage module asphalt plants. These goods are now subject to a duty rate of free, as opposed to the general rate of 5%. This concession is contingent upon the CEO's determination that no substitutable goods are produced domestically, thereby satisfying the core criteria stipulated by the Act.
The obligations imposed by the Act on the CEO include the requirement to assess the validity of TCO applications, determine whether they meet the core criteria, and issue a TCO if appropriate. Furthermore, the CEO must publish a notice in the Gazette (subsection 269K(1)) inviting any interested parties to submit objections if they believe the TCO should not be granted. In this instance, no submissions were received, indicating broad acceptance of the concession. The TCO’s commencement date is the same as the application date, ensuring that the duty concession applies retroactively from the moment the application was lodged.
Failure to comply with the provisions of the Customs Act 1901 and the related regulations may result in civil or criminal penalties. While the explanatory statement does not explicitly detail the penalties, breaches of customs regulations generally attract significant fines and, in severe cases, imprisonment. The exact penalties would depend on the specific nature and severity of the breach, as well as any applicable regulations under the Customs Act 1901 and related legislation.