EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0836683
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.
Hella Australia Pty Ltd applied for a TCO in respect of certain vacuum depositor metalliser on 23 October 2008.
Instrument
TCO No 0836683 was made on 16 January 2009. It declares that those certain vacuum depositor metalliser 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. 0836683 is taken to have come into force on 23 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 Tariff Concession Instrument No. 0836683 was enacted in 2009 under the Customs Act 1901 to address the need for tariff concessions on specific imported goods, in this case, certain vacuum depositor metalliser. This instrument was introduced by the Chief Executive Officer of Customs, following an application by Hella Australia Pty Ltd on 23 October 2008. The problem this legislation aimed to solve was the lack of duty-free access for certain imported goods, which could potentially stimulate economic activity by making these goods more competitively priced. The policy objective was to facilitate the importation of these goods by applying a zero rate of duty, thereby encouraging their use and integration into Australian businesses. The instrument came into force on the same day as the application was lodged, and it ensures that no existing rights or liabilities are adversely affected by its implementation.
Scope and Application
The Tariff Concession Instrument No. 0836683, made under section 269F of the Customs Act 1901, applies to the specific category of goods known as vacuum depositor metalliser, for which Hella Australia Pty Ltd applied on 23 October 2008. This instrument is designed to provide tariff concessions by reducing the rate of customs duty applicable to these goods, provided that certain conditions specified in the Act are met. Specifically, the Chief Executive Officer of Customs must be satisfied that no substitutable goods are produced in Australia in the ordinary course of business, thereby ensuring that the concession does not undermine local industries. The instrument came into effect on the date the application was lodged, 23 October 2008, and it declares that these goods are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with the general rate of duty reduced to free. The Act ensures that the rights of persons other than the Commonwealth are not adversely affected by this concession and imposes no new liabilities on them.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0836683 under the Customs Act 1901 (the Act) (sections 269C, 269F, 269K, and 269P) establish the criteria and process for granting a Tariff Concession Order (TCO) to reduce the customs duty on certain goods. Section 269F allows an application to be made by a person to the Chief Executive Officer (CEO) of Customs for a TCO, provided that the goods are not specified in section 269SJ of the Act. The CEO must then determine whether the application meets the core criteria 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 under section 269P(3). The TCO is taken to have come into force on the day the application was lodged as per section 269S(1).
The Act imposes specific obligations on the CEO and applicants for a TCO. The CEO must assess whether an application meets the core criteria set out in section 269C, which includes verifying that no substitutable goods were produced in Australia in the ordinary course of business. Upon acceptance of a valid application, the CEO is required to publish a notice in the Gazette under section 269K(1) inviting any interested parties to submit any reasons why the TCO should not be made. In this case, the CEO did not receive any submissions in response to the published notice. Additionally, the Act ensures that the rights of persons (other than the Commonwealth) are not adversely affected by the registration of a TCO, and it does not impose any liabilities on any person in respect of actions taken before the registration date.
Failure to comply with the provisions of the Customs Act 1901 and the associated regulations may result in various offences, penalties, or civil/criminal consequences. While the explanatory statement does not detail specific penalties, breaches of the Act could potentially lead to fines, imprisonment, or other legal consequences as prescribed by the relevant laws. The exact penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Customs Act 1901 and associated regulations.