EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0840475
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.
Austral Wright Metals Pty Ltd applied for a TCO in respect of certain copper nickel square tubes or pipes on 20 November 2008.
Instrument
TCO No 0840475 was made on 27 February 2009. It declares that those certain copper nickel square tubes or pipes 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. 0840475 is taken to have come into force on 20 November 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 to facilitate and regulate the collection of customs duties, providing a structured framework for the administration of import and export tariffs in Australia. The Act was introduced to address the need for a comprehensive legislative basis for managing customs duties, which are crucial for revenue collection and the regulation of trade. This Act empowers the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that lower the rate of customs duty on specified goods under certain conditions. The policy objective, as outlined in the explanatory statement, is to provide tariff relief on goods that are not produced domestically, thereby encouraging imports and potentially lowering costs for consumers and businesses. The Parliament of Australia enacted this legislation to ensure that the customs regime is both efficient and responsive to economic conditions, particularly by allowing for tariff reductions where local production is absent.
Scope and Application
The Tariff Concession Instrument No. 0840475, made under the Customs Act 1901, applies to specific goods, in this case certain copper nickel square tubes or pipes, which are subject to a lower rate of customs duty as a result of a Tariff Concession Order (TCO). The Act governs the application process for TCOs, which is initiated by an application to the Chief Executive Officer of Customs (CEO) by a person, and is subject to the criteria outlined in the Act, particularly under sections 269C and 269SJ. If the CEO determines that the application meets the core criteria, a TCO is issued, as was the case with Instrument TCO No. 0840475, which came into force on the date of the application, 20 November 2008. The scope of this legislation is national, as it falls under the Commonwealth’s jurisdiction, and it applies to all relevant goods imported into Australia. There are no exclusions specified within the text for this particular TCO, but generally, goods specified in section 269SJ of the Customs Act 1901 cannot be subject to a TCO. The TCO does not affect the rights of any person other than the Commonwealth and does not impose any liabilities on any person.
Key Provisions
The main operative sections of this Tariff Concession Instrument are section 269F, which allows for the application of Tariff Concession Orders (TCOs), and section 269C, which sets out the core criteria for the approval of such orders. Section 269F permits an individual or entity to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of specific goods, while section 269C specifies that the CEO must be satisfied that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, in order for the application to meet the core criteria (269C, 269D, 269E).
The obligations imposed by the Act on the parties involved include the requirement for the CEO to publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made (269K(1)). The CEO must also ensure that the application meets the core criteria, which involves confirming that no substitutable goods were produced in Australia on the day the application was lodged (269C). Furthermore, the Act mandates that a TCO is to be taken as coming into force on the day on which the application for the TCO was lodged (269S(1)).
In terms of offences and penalties, the Act does not explicitly outline specific criminal or civil penalties for breaches of the TCO provisions. However, the Act does provide for general enforcement mechanisms under other sections, which could include fines or imprisonment for serious breaches related to the Customs Act 1901. The specific maximum penalties for such offences would depend on the particular breach and the relevant provisions of the Customs Act 1901. Additionally, any party adversely affected by the TCO may have the right to seek judicial review or other remedies under the Administrative Decisions (Judicial Review) Act 1977.