EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0841238
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.
Syngenta Crop Protection applied for a TCO in respect of certain metalaxyl-m fungicides on 26 November 2008.
Instrument
TCO No 0841238 was made on 27 February 2009. It declares that those certain metalaxyl-m fungicides 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. 0841238 is taken to have come into force on 26 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, enacted by the Australian Parliament, provides for a scheme under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs to reduce customs duty on certain goods. This legislative framework aims to address the problem of applying tariff concessions to goods where no suitable Australian-produced substitutes exist, thereby encouraging importation and potentially reducing costs for consumers. Tariff Concession Instrument No. 0841238, issued under this Act, was introduced to provide a tariff concession for certain metalaxyl-m fungicides, effective from the date the application was lodged. The instrument was published in the Gazette with an invitation for submissions, though none were received, indicating broad acceptance of the tariff reduction. This instrument ensures that the rights of importers are protected and can benefit from duty refunds for goods imported since the effective date, without imposing any liabilities.
Scope and Application
The Customs Act 1901, as modified by Tariff Concession Instrument No. 0841238, applies to the application and subsequent regulation of tariff concessions for specific goods. This particular legislation allows the Chief Executive Officer of Customs to grant tariff concessions, effectively reducing the customs duty on particular goods, in this instance, certain metalaxyl-m fungicides. The Act applies to any individual or entity that seeks to import the specified goods and benefits from the reduced customs duty rate. It is pertinent to industries and transactions involving the importation of these fungicides. The geographic and jurisdictional scope of this Act is national, impacting customs practices across Australia as a whole. The Act does not apply to goods specified in section 269SJ of the Customs Act, which excludes certain types of goods from tariff concessions. Additionally, the Act allows for the application to be extended or restricted through subordinate instruments, although in this specific case, no such amendments were made to the original application.
Key Provisions
Section 269F of the Customs Act 1901 allows an individual to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) concerning certain goods. If the CEO finds that the application is not for goods specified in section 269SJ, which are ineligible for a TCO, the CEO must determine if the application meets the core criteria, as outlined in section 269C. This decision is contingent on whether any substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. The definitions of key terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269D, 269E, and 269F respectively. If the CEO is satisfied that the application meets these criteria, a TCO must be issued under section 269P(3), specifying the applicable prescribed item of Schedule 4 to the Customs Tariff Act 1995, effectively reducing the duty on the specified goods.
The Act imposes several obligations on the CEO, including the requirement to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, as per subsection 269K(1). This notice invites any person who believes the TCO should not be made to submit their reasons to the CEO. The Act also mandates that a TCO is considered to come into force on the day the application for the TCO was lodged, as per subsection 269S(1). Additionally, the rights of importers will be positively affected under paragraph 126(1)(r) of the Regulations, which allows them to apply for a refund of duty on goods imported since the effective date of the TCO. The Act ensures that the rights of any person, other than the Commonwealth, as at the date of registration are not adversely affected by the TCO.
Section 269SJ of the Customs Act 1901 specifies the goods that cannot be subject to a TCO. The Act does not impose any liabilities on any person under a TCO, ensuring that individuals are not disadvantaged or liable for actions taken before the date of registration. The legislation is designed to provide tariff concessions without imposing additional burdens on non-Commonwealth entities. However, if any provisions are breached, the penalties and consequences are not explicitly detailed in the text, but they could include fines or other sanctions as stipulated by the relevant legal frameworks.