EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0837117
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.
Minco Australia Pty Ltd applied for a TCO in respect of certain steel sample mould sleeve on 27 October 2008.
Instrument
TCO No 0837117 was made on 16 January 2009. It declares that those certain steel sample mould sleeve 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. 0837117 is taken to have come into force on 27 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. 0837117 was enacted in 2009 under the Customs Act 1901 to address the need for tariff concessions on certain imported goods, thereby reducing the customs duty burden on specific products. This legislative instrument was introduced to streamline the process by which the Chief Executive Officer of Customs can make Tariff Concession Orders (TCOs) in accordance with the provisions of the Customs Act. The instrument specifies that the CEO must consider applications for TCOs and make decisions based on whether the goods in question are substitutable by Australian-produced goods. The enactment body, the Parliament of Australia, aimed to facilitate smoother trade operations by providing tariff relief, thus encouraging imports that do not compete directly with local production. The policy objective is to ensure that the application of tariff concessions supports economic efficiency and trade competitiveness without disadvantaging existing rights or imposing new liabilities on entities involved in the importation process.
Scope and Application
The Customs Act 1901, through its Part XVA, facilitates the issuance of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs, effectively allowing for lower rates of customs duty on specified goods. This Act applies to individuals and entities, specifically importers, who seek to import goods that may be subject to such tariff concessions. The Act's scope extends to any goods for which a TCO application is made, provided these goods are not specified in section 269SJ of the Act, which lists those goods that cannot be subject to a TCO. The application of the Act is nationwide, as it is a Commonwealth Act, thus applying across all states and territories in Australia. The Act may also extend its application through subordinate instruments, although specific details regarding such instruments are not provided in the explanatory statement. The Act does not impose any liabilities or disadvantage existing rights of persons other than the Commonwealth, and it does not affect rights as at the date of registration of a TCO application.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0837117 pertain to the application and making of a Tariff Concession Order (TCO) under the Customs Act 1901. Specifically, section 269F allows an individual or entity to apply to the Chief Executive Officer of Customs (CEO) for a TCO concerning certain goods (subsection 269F(1)). If the CEO determines that the application does not involve goods excluded by section 269SJ and that it meets the core criteria set out in section 269C, the CEO must make a written TCO (subsection 269P(3)). This TCO, as illustrated by Instrument TCO No. 0837117, specifies that certain steel sample mould sleeves are subject to a reduced rate of customs duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, effectively making the duty free.
Under the Customs Act 1901, the CEO has certain obligations and requirements when handling TCO applications. Firstly, the CEO must ensure that the application pertains to goods not listed in section 269SJ, which are ineligible for a TCO (subsection 269F(2)). Additionally, the CEO must assess whether the application meets the core criteria, particularly whether no substitutable goods were produced in Australia on the day the application was lodged (section 269C). If these criteria are met, the CEO must publish a notice in the Gazette inviting submissions from any interested parties who may oppose the TCO (subsection 269K(1)). The CEO is also responsible for making the TCO effective from the date the application was lodged (subsection 269S(1)).
The Customs Act 1901 and associated regulations impose specific obligations on the parties involved. The applicant must provide all necessary information and evidence to substantiate their claim that no substitutable goods were produced in Australia on the application date (section 269C). The CEO, in turn, must diligently evaluate the application against the core criteria and consider any submissions received during the Gazette notice period. Any interested parties who wish to oppose the TCO must lodge their submissions with the CEO within the stipulated timeframe. Failure to adhere to these obligations may result in the TCO not being granted or being challenged in a legal context.
There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the Customs Act 1901 or the associated regulations in relation to the making of a TCO. However, any actions that contravene the requirements of the Act or the regulations could potentially lead to legal disputes or administrative penalties if found to be in breach of the legislative provisions. The primary focus is on ensuring that the process is transparent, fair, and in compliance with the statutory requirements to avoid any legal or administrative repercussions.