EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0843258
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.
Titan Cranes applied for a TCO in respect of certain tower sections on 09 December 2008.
Instrument
TCO No 0843258 was made on 06 March 2009. It declares that those certain tower sections 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. 0843258 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. 0843258 was enacted under the Customs Act 1901 to address the issue of tariff concessions for specific goods. This legislation was introduced to facilitate the reduction of customs duty for certain imported goods, provided they meet specific criteria, such as the absence of substitutable goods being produced in Australia. The Tariff Concession Order (TCO) system enables the Chief Executive Officer of Customs to apply a lower rate of customs duty to qualifying goods, thereby promoting fair trade and supporting the competitive edge of Australian industries where applicable substitutes are not domestically produced.
The instrument was made to support the policy objective of ensuring that the Australian market can access necessary imported goods at a reduced tariff rate, without disadvantaging existing producers or imposing liabilities on individuals for actions prior to the TCO's enactment. Titan Cranes applied for this specific concession concerning certain tower sections, and the Instrument was made effective from the date of the application, 09 December 2008, with no submissions received against the concession during the consultation period.
Scope and Application
The Tariff Concession Instrument No. 0843258 under the Customs Act 1901 applies to individuals and entities seeking a concession on customs duty for specific goods, provided that such goods do not fall under the restricted category outlined in section 269SJ of the Act and meet the core criteria established in section 269C. This means that the instrument applies to applicants who can demonstrate that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business. The geographic scope of this legislation is national, as it pertains to the Customs Act 1901, which is a Commonwealth Act. The instrument itself does not impose any disadvantages or liabilities on persons other than the Commonwealth and does not affect any pre-existing rights of non-Commonwealth persons. The TCO No. 0843258, which became effective on 09 December 2008, specifically addresses the tariff concessions for certain tower sections, reducing their duty from 5% to free. The legislation allows for further specification and extension of application through subordinate instruments, as indicated by the inclusion of a schedule in the Customs Tariff Act 1995.
Key Provisions
The key provisions of Tariff Concession Instrument No. 0843258, as outlined in the explanatory statement, centre around the application and approval of a Tariff Concession Order (TCO) under the Customs Act 1901 (the Act) (s 269F, s 269C). Specifically, the instrument addresses the application process for tariff concessions, the criteria for approval, and the publication and commencement of such orders. For instance, section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of certain goods. If the CEO is satisfied that the application is valid and meets the core criteria outlined in section 269C, the CEO must make a written order declaring that the goods in question are subject to a tariff concession. The instrument in question was made on 6 March 2009 and applies to certain tower sections, which are now subject to a free rate of duty instead of the general rate of 5% (s 269P(3)).
The Act imposes specific obligations on the CEO regarding the processing and approval of TCO applications. Under section 269K(1), the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid. This notice invites any person who believes there are reasons why the TCO should not be made to lodge a submission with the CEO. Furthermore, the CEO must ensure that the application meets the core criteria, which include verifying that no substitutable goods were produced in Australia on the day the application was lodged (s 269C). These obligations are crucial to maintain the integrity and fairness of the tariff concession scheme.
Failure to comply with the requirements set out in the Customs Act 1901 may result in legal consequences. However, the explanatory statement does not explicitly outline specific offences, penalties, or consequences for breach. Generally, breaches of the Act could potentially lead to civil or criminal penalties, but the exact nature of these penalties would need to be determined based on the specific circumstances of the breach and the relevant sections of the Act. For instance, non-compliance with the tariff concession process could lead to disputes over duty payments or refunds, which may be resolved through administrative or judicial processes.
Overall, Tariff Concession Instrument No. 0843258 provides a clear framework for the application and approval of tariff concessions under the Customs Act 1901. By outlining the core criteria for approval, the obligations of the CEO, and the commencement of the TCO, the instrument ensures that the tariff concession process is transparent, fair, and in line with the legislative requirements. The instrument also highlights the importance of consultation and publication in maintaining the integrity of the scheme.