EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0843279
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.
Bevelite Glass applied for a TCO in respect of certain pre nip laminated glass on 10 December 2008.
Instrument
TCO No 0843279 was made on 06 March 2009. It declares that those certain pre nip laminated glass 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. 0843279 is taken to have come into force on 10 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. 0843279, enacted under the Customs Act 1901, addresses the issue of applying for tariff concessions on specific imported goods to facilitate more competitive pricing and potentially stimulate domestic industry growth where such goods are not produced domestically. The Customs Act 1901 establishes a framework through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs, providing lower rates of customs duty for certain goods. This particular instrument was introduced to allow Bevelite Glass to import certain pre-nip laminated glass duty-free, responding to their application on 10 December 2008. The instrument was published in the Gazette with no objections received, and it came into effect on the date of the application, 10 December 2008. The policy objective here is to ensure that the rights of importers are protected and potentially enhanced, allowing them to apply for refunds of duties paid on the goods imported since the TCO’s effective date.
Scope and Application
The Tariff Concession Instrument No. 0843279 under the Customs Act 1901 applies to goods specified in the application made by Bevelite Glass, in this case, certain pre nip laminated glass. This Instrument is applicable to any entity or individual importing these specific goods into Australia. The Instrument was made by the Chief Executive Officer of Customs and applies to the entire Commonwealth of Australia. The application of this Tariff Concession Order is contingent upon the CEO determining that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. The order exempts the specified goods from the general customs duty rate, instead applying a rate of zero per cent as specified in item 50 of Schedule 4 to the Customs Tariff Act 1995. This Instrument does not extend to goods that are listed in section 269SJ of the Act, which are explicitly excluded from tariff concession orders. The order came into effect on 10 December 2008, the date on which the application for the TCO was lodged, and it does not affect any rights or impose any liabilities on any person in respect of anything done or omitted to be done before the date of registration.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0843279 under the Customs Act 1901 (section 269F) allow for the application for Tariff Concession Orders (TCOs) by any person, provided the goods in question are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. If an application is deemed valid, the Chief Executive Officer of Customs (CEO) must determine if it meets the core criteria (section 269C). This involves ensuring that no substitutable goods were produced in Australia in the ordinary course of business at the time of application (section 269P(3)). If the application meets these criteria, the CEO must issue a TCO (section 269P(3)), effectively reducing the customs duty on the specified goods. In this case, Bevelite Glass applied for and was granted a TCO for certain pre nip laminated glass (item 50 of Schedule 4 to the Customs Tariff Act 1995), resulting in a duty-free status for these goods.
The obligations imposed by the Act on parties include the requirement for any person seeking a TCO to ensure their application adheres to the core criteria. Specifically, the applicant must demonstrate that no substitutable goods were produced in Australia in the ordinary course of business at the time of application. Additionally, the CEO has the obligation to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting submissions from any person who may have reasons why the TCO should not be made (subsection 269K(1)). Furthermore, the TCO must come into force on the day on which the application for the TCO was lodged (subsection 269S(1)). This legislative framework ensures that the process for granting tariff concessions is transparent and allows for public consultation.
Breaching the conditions set out in the Customs Act 1901 can lead to several consequences. For instance, if a person knowingly provides false information in a TCO application, this could be considered an offence under the Act. Penalties for such offences can include substantial fines and, in some cases, imprisonment. Specifically, the maximum penalty for providing false or misleading information in an application for a TCO can be up to 10,000 penalty units or imprisonment for five years, or both (section 269ZC). These stringent measures are in place to maintain the integrity of the tariff concession process and ensure that only genuinely eligible goods receive duty concessions.
The Tariff Concession Instrument No. 0843279, under the Customs Act 1901, sets out a clear process for the application and approval of Tariff Concession Orders. It mandates that applications meet specific criteria and be transparent, allowing for public consultation. The obligations for applicants and the CEO are clearly defined, with significant penalties for non-compliance or fraudulent applications. This legal framework ensures that tariff concessions are granted fairly and that the rights of all parties are protected.