EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0833445
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 conveyors asphalt plant on 05 September 2008.
Instrument
TCO No 0833445 was made on 28 November 2008. It declares that those certain conveyors 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. 0833445 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 Australian Parliament, includes provisions for Tariff Concession Orders (TCOs) which allow for the reduction of customs duty on certain goods. This piece of legislation was introduced to address the issue of ensuring fair trade practices by providing relief on import duties for specific goods that are not produced domestically, thus encouraging trade and economic growth. The Tariff Concession Instrument No. 0833445, created under this Act, aims to facilitate the importation of certain conveyors for asphalt plants by Downer Edi Works Pty Ltd by applying a zero duty rate, thereby benefiting importers and potentially reducing the overall cost of these goods. The process involves rigorous checks by the Chief Executive Officer of Customs to ensure that the concession does not disadvantage the domestic industry by allowing imports of goods that could be produced locally.
Scope and Application
The Tariff Concession Instrument No. 0833445, made under the Customs Act 1901, applies to entities or individuals seeking tariff concessions on certain conveyors for asphalt plants. This instrument allows for a reduced rate of customs duty on these goods, which are now duty-free as a result of the concession. The application of this instrument is governed by the conditions set out in Part XVA of the Customs Act, which mandates that the goods in question must not have substitutable alternatives produced domestically. The instrument is effective from the date the application was lodged, which in this case was 5 September 2008. The instrument's geographic and jurisdictional reach is limited to the Commonwealth of Australia, and it does not disadvantage any person or impose liabilities on anyone in respect of actions taken prior to the instrument's effective date. Notably, the rights of importers are positively affected, as they can apply for a refund of duty on the imported goods since the date the Tariff Concession Order came into force. The application process and the decision-making authority rest with the Chief Executive Officer of Customs, who must ensure that the application meets the core criteria stipulated in the Act.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, 269P, and 269S of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) for certain goods. If the application meets the core criteria specified in section 269C, the CEO must make a TCO, as outlined in section 269P. Section 269S provides that a TCO comes into force on the day the application is lodged. The TCO in question, No. 0833445, pertains to certain conveyors asphalt plant, which are subject to a reduced rate of customs duty of free, as opposed to the general rate of 5% under item 50 of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes obligations on both the applicant and the CEO. Downer Edi Works Pty Ltd, the applicant, must ensure that their application for a TCO is valid and meets the core criteria set out in section 269C. This includes demonstrating that no substitutable goods are produced in Australia at the time of application. The CEO, on the other hand, is required to assess the application to determine if it meets these criteria and, if satisfied, make a written TCO. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties regarding the proposed TCO. In this instance, no submissions were received.
The Customs Act 1901 provides for certain offences and penalties for breaches of its provisions. However, specific offences and penalties related to TCOs are not detailed in the explanatory statement. Generally, breaches of the Customs Act can result in civil or criminal penalties, depending on the nature and severity of the breach. Penalties can include fines, imprisonment, or both. It is important to refer to the specific sections of the Act and associated regulations for detailed information on penalties for non-compliance. In this context, no submissions were received against the TCO, indicating compliance with the notice requirements under section 269K(1) of the Act.