EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0843193
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.
Bitzer Australia applied for a TCO in respect of certain heat exchangers plate on 09 December 2008.
Instrument
TCO No 0843193 was made on 06 March 2009. It declares that those certain heat exchangers plate 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. 0843193 is taken to have come into force on 09 December 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. 0843193, enacted under the Customs Act 1901, addresses the issue of providing tariff concessions for specific goods to ensure they are not subject to higher customs duties than necessary. This legislation was introduced to facilitate the application process for Tariff Concession Orders (TCOs), enabling the Chief Executive Officer of Customs to make orders that reduce customs duty rates for certain goods, thereby promoting trade and economic efficiency. The instrument was established to meet the core criteria outlined in section 269C of the Act, ensuring that a TCO can be granted if no substitutable goods are produced in Australia in the ordinary course of business. The policy objective is to provide a streamlined process for applying for tariff concessions, ensuring that importers of specified goods can benefit from reduced duty rates, as long as the goods in question do not have Australian-made equivalents. The instrument, effective from 9 December 2008, does not impose any liabilities on persons other than the Commonwealth and allows for the refund of duty paid on goods imported since the effective date of the TCO.
Scope and Application
The Tariff Concession Instrument No. 0843193 applies to certain heat exchanger plates as specified in the Instrument, which is an outcome of the application made under Part XVA of the Customs Act 1901. This legislation applies to the entities or individuals importing these specific goods, thereby granting them the benefit of a reduced or free customs duty rate, contingent upon the absence of substitutable goods produced in Australia. The application of this Act is confined to the Commonwealth jurisdiction, where the Chief Executive Officer of Customs (CEO) is vested with the authority to make Tariff Concession Orders (TCOs). Any exclusions or exemptions are outlined in section 269SJ of the Act, which specifies goods that cannot be subject to a TCO. The application process requires meeting core criteria, including the condition that no substitutable goods were produced in Australia in the ordinary course of business at the time of application. The Act does not impose any liabilities on persons other than the Commonwealth and does not affect any existing rights as at the date of registration.
Key Provisions
The main operative sections of this legislation, specifically Tariff Concession Instrument No. 0843193 under the Customs Act 1901, involve the application and approval process for Tariff Concession Orders (TCOs) as detailed in sections 269C, 269F, and 269P. Section 269F allows for applications to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods, while section 269C outlines the core criteria that the CEO must be satisfied with before approving the application. Section 269P(3) mandates the CEO to make a written order if the core criteria are met, declaring that the goods in question are subject to a specific rate of duty as outlined in the Customs Tariff Act 1995.
The Act imposes several obligations and requirements on the parties involved. The CEO is required to ensure that the application is not in respect of goods specified in section 269SJ of the Act, which lists those goods that cannot be subject to a TCO. The CEO must also verify that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Additionally, upon accepting a TCO application as valid, the CEO must publish a notice in the Gazette inviting any person to submit objections or reasons why the TCO should not be made, as outlined in subsection 269K(1).
Offences and penalties under this legislation are not explicitly detailed in the provided text, but the Act does provide for civil and criminal consequences for breaches of its provisions. The Act stipulates that the TCO does not affect the rights of a person as at the date of registration so as to disadvantage that person or impose liabilities in respect of actions taken before the date of registration. It is important to note that the rights of importers will be beneficially affected, as they can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force. The TCO itself does not impose any liabilities on any person.