EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0835301
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 Pty Ltd applied for a TCO in respect of certain stainless steel roof fittings on 14 October 2008.
Instrument
TCO No 0835301 was made on 14 January 2009. It declares that those certain stainless steel 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. 0835301 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 was enacted by the Parliament of Australia to regulate the importation and exportation of goods, among other things, and to provide for the collection of duties and taxes on imported goods. It established a framework for the administration of customs and border control. The Tariff Concession Instrument No. 0835301, made under the Customs Act 1901, was introduced to address the problem of ensuring that certain goods, which are not produced in Australia and for which no substitutable goods are produced domestically, receive appropriate tariff concessions. This instrument was created in response to an application by Zambelli Rainwater Products Pty Ltd for a Tariff Concession Order (TCO) concerning specific stainless steel roof fittings. The policy objective is to facilitate the import of goods that are not domestically produced and to provide relief to importers by offering a reduced or free rate of customs duty on these goods, thereby supporting industries that rely on imported materials.
Scope and Application
The Customs Act 1901 applies to individuals and entities engaged in the importation of goods into Australia, with a specific focus on the application of tariff concession orders (TCOs) as outlined in Part XVA. This legislation empowers the Chief Executive Officer of Customs to grant TCOs that lower the rate of customs duty on specified goods, provided certain criteria are met. These criteria include ensuring that no substitutable goods are produced in Australia at the time of application, thereby avoiding any disadvantage to domestic producers. The TCO mechanism extends across the entire Commonwealth of Australia, with its application not limited to specific states or territories. However, certain goods, as outlined in section 269SJ of the Act, are excluded from eligibility for TCOs. The application and scope of the TCOs may be further refined through subordinate instruments, which allow for detailed specifications and procedural guidelines to be established. Importantly, the TCOs do not retroactively affect the rights of any person, ensuring that existing rights and obligations are preserved.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0835301, under the Customs Act 1901, pertain to the application, assessment, and granting of Tariff Concession Orders (TCOs) for specific goods. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO in respect of certain goods. The CEO must then decide whether the application meets the core criteria as outlined in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, a written order (TCO) must be made, declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, as stipulated in section 269P(3).
The obligations imposed by the Act on the parties involved are primarily on the CEO of Customs. The CEO must assess each TCO application to determine if it meets the core criteria. This involves verifying that no substitutable goods were produced in Australia on the day the application was lodged. Additionally, the CEO must publish a notice in the Gazette inviting any person who believes there are reasons why the TCO should not be made to lodge a submission, as required by section 269K(1) of the Act. The CEO must also ensure that the TCO does not affect the rights of any person (other than the Commonwealth) as at the date of registration, nor impose any liabilities on such persons in respect of anything done or omitted before the date of registration, as per section 269S(1).
There are no explicit offences, penalties, or civil/criminal consequences for breach detailed in the Explanatory Statement for Tariff Concession Instrument No. 0835301. The primary focus of the legislation is on the procedural requirements for applying for, assessing, and granting a TCO. The Act does not outline specific sanctions for failing to comply with these requirements; however, any failure to adhere to the stipulated procedures could potentially lead to the TCO being challenged or not granted. This might indirectly affect the rights and benefits of the applicant and subsequent importers, as the TCO is contingent on meeting all legislative requirements.