EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0836801
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.
Geraldton Brickworks Pty Ltd applied for a TCO in respect of certain bricks robotized palletizing line on 24 October 2008.
Instrument
TCO No 0836801 was made on 16 January 2009. It declares that those certain bricks robotized palletizing line 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. 0836801 is taken to have come into force on 24 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. 0836801, enacted in 2009 under the Customs Act 1901, was introduced to address the need for tariff concessions on specific goods that are not produced in Australia, thus ensuring competitive pricing and availability of these goods. This instrument allows for a lower rate of customs duty to be applied to goods that are the subject of a Tariff Concession Order (TCO). The Tariff Concession Instrument was developed by the Chief Executive Officer of Customs following an application from Geraldton Brickworks Pty Ltd for a TCO concerning a certain bricks robotized palletizing line. The instrument specifies that this particular line of goods will be subject to a free duty rate, which is a reduction from the general rate of 5%.
The instrument was created to ensure that the application process was transparent and inclusive, with an opportunity for public consultation before the final decision was made. The CEO published a notice in the Gazette inviting any interested parties to submit their views on the application, though no submissions were received. The Tariff Concession Order came into force on the date the application was lodged, 24 October 2008, without any retroactive imposition of liabilities on persons other than the Commonwealth, and it provides for the potential refund of duties to importers of the specified goods under the relevant regulations.
Scope and Application
The Tariff Concession Instrument No. 0836801, made under the Customs Act 1901, applies to entities seeking tariff concessions on goods imported into Australia, specifically in relation to certain bricks robotized palletizing lines. This instrument was made by the Chief Executive Officer of Customs (CEO) after Geraldton Brickworks Pty Ltd applied for the concession on 24 October 2008. The Act applies to those who apply for and are granted a Tariff Concession Order (TCO), with the CEO determining eligibility based on whether substitutable goods are produced in Australia. The concession is geographically limited to Australia and applies to the specific goods identified in the instrument, namely those covered under item 50 of Schedule 4 to the Customs Tariff Act 1995. The CEO must ensure no substitutable goods are produced in Australia to meet the core criteria, as outlined in section 269C of the Act. This instrument does not affect any pre-existing rights or liabilities of entities other than the Commonwealth and allows for potential duty refunds for importers of the specified goods under certain conditions.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0836801 (referenced as TCO No. 0836801) include section 269C, which defines the core criteria for a Tariff Concession Order (TCO). This section mandates that a TCO application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged (s 269C). Additionally, section 269P(3) stipulates that if the Chief Executive Officer of Customs (CEO) is satisfied that the application meets the core criteria, they must issue a written order (TCO) specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question. This TCO declares that the goods are subject to a specified rate of duty, in this case, free of charge.
The obligations imposed by the Act on the parties involved, particularly the CEO, include ensuring that the TCO application meets the core criteria as outlined in section 269C and that no substitutable goods were produced in Australia on the day the application was lodged. The CEO is also required to publish a notice in the Gazette inviting any interested parties to lodge submissions if they believe there are reasons why the TCO should not be made, as per section 269K(1). The CEO must consider these submissions before deciding whether to proceed with the TCO.
Under section 269SJ of the Customs Act 1901, certain goods are ineligible for a TCO, and the CEO must ensure that the application does not pertain to these goods. If the CEO finds that the application meets the core criteria, they must make a written TCO declaring the applicable duty rate. The Act also stipulates that the TCO will come into effect on the day the application was lodged (s 269S(1)). This means that the TCO No. 0836801, which was lodged on 24 October 2008, is taken to have come into force on that date.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the explanatory statement for breaches of the provisions in the Customs Act 1901 or the TCO No. 0836801. However, any failure by the CEO to comply with the statutory obligations, such as not adhering to the core criteria or not publishing the notice in the Gazette, could potentially lead to legal challenges or administrative reviews. Furthermore, any person adversely affected by the TCO might seek judicial review if they believe the CEO did not follow the correct procedures or if the TCO was issued in error.