EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0835295
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.
Zambelli Rainwater Products applied for a TCO in respect of certain refined copper roof fittings on 14 October 2008.
Instrument
TCO No 0835295 was made on 14 January 2009. It declares that those certain refined copper roof fittings 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. 0835295 is taken to have come into force on 14 October 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, provides a framework for the imposition of customs duties on imported goods. Part XVA of the Act introduces the scheme under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. The Tariff Concession Instrument No. 0835295, made on 14 January 2009, was introduced to address the specific needs of Zambelli Rainwater Products by providing tariff concessions on certain refined copper roof fittings. The primary objective was to ensure that these goods are subject to a reduced customs duty rate, in this case from 5% to free, provided that no substitutable goods are produced in Australia. The instrument was published in the Gazette with no objections received, and it came into force on the date the application was lodged, 14 October 2008. This legislative measure aims to benefit importers by allowing them to claim refunds for duties paid on these goods since the effective date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0835295, made under Part XVA of the Customs Act 1901, applies specifically to the goods for which Zambelli Rainwater Products applied, namely certain refined copper roof fittings. The instrument applies to any entity or person importing these specified goods into Australia and aims to provide a tariff concession by reducing the customs duty on these goods from the general rate of 5% to free. This application is limited to goods for which the Chief Executive Officer of Customs is satisfied that no substitutable goods are produced in Australia in the ordinary course of business, as per the criteria outlined in the Act. The geographic reach of this Act is national, affecting all importers across Australia, but it does not extend beyond Australian borders. The instrument does not affect any pre-existing rights or impose any liabilities on persons other than the Commonwealth and was effective from the date the application was lodged, 14 October 2008. The Act does not specify any exclusions or exemptions other than those outlined in section 269SJ of the Customs Act 1901, which pertains to goods that cannot be subject to a Tariff Concession Order. The application process for such orders may be further detailed or modified by subordinate instruments under the authority of the Customs Act 1901.
Key Provisions
The Tariff Concession Instrument No. 0835295, under section 269F of the Customs Act 1901, enables the Chief Executive Officer of Customs (CEO) to make a Tariff Concession Order (TCO) for certain goods, provided they meet specific criteria. Specifically, section 269C of the Act stipulates that a TCO application is valid if, on the date the application was made, no substitutable goods were produced in Australia in the ordinary course of business. In this instance, Zambelli Rainwater Products applied for a TCO on certain refined copper roof fittings on 14 October 2008. The CEO, satisfied that the application met the core criteria as no substitutable goods were being produced in Australia, issued TCO No. 0835295 on 14 January 2009, declaring that these fittings are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, with a duty rate of free, down from the general rate of 5%.
The obligations imposed by the Act on the CEO include the assessment of TCO applications against the core criteria set out in section 269C, the publication of an invitation for submissions in the Gazette as per subsection 269K(1), and the issuance of a written TCO if the application is valid. In this case, the CEO published a notice in the Gazette on 14 October 2008, inviting any interested parties to submit their views on why the TCO should not be made. No submissions were received in response to this invitation. The TCO, as per subsection 269S(1), is deemed to have come into force on 14 October 2008, the date the application was lodged.
Breaching the provisions of the Customs Act 1901 can lead to both civil and criminal penalties. Under section 254-10 of the Customs Act, a person who contravenes the Act may be liable to a penalty of up to 10,000 penalty units for an individual and up to 50,000 penalty units for a body corporate. Additionally, section 254-15 provides that a person who knowingly or recklessly makes a false statement in an application for a TCO may also be subject to imprisonment for up to two years. The consequences of non-compliance can therefore be severe, impacting both the financial obligations and potentially the liberty of the parties involved.