EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0901706
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.
Bianco Walling Machines applied for a TCO in respect of certain concrete slab working machines on 19 January 2009.
Instrument
TCO No 0901706 was made on 14 April 2009. It declares that those certain concrete slab working machines 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. 0901706 is taken to have come into force on 19 January 2009.
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. 0901706 was enacted under the Customs Act 1901 to provide a mechanism for the Chief Executive Officer of Customs to offer tariff concessions on certain imported goods. This legislation was introduced to address the problem of ensuring that Australia's import tariff regime supports industries that lack domestic production capabilities, thus fostering competitiveness and economic growth. The Australian Parliament enacted this instrument to facilitate the process whereby businesses can apply for a Tariff Concession Order (TCO) to benefit from lower customs duties on specified goods. The policy objective is to ensure that imports of goods that are not produced domestically are taxed at a preferential rate, thereby assisting Australian industries in their competitiveness against foreign producers.
The instrument was brought into effect on 19 January 2009, the date the application for the TCO was lodged, in accordance with the provisions of the Customs Act. This date also marks the commencement of the tariff concession, which applies to certain concrete slab working machines, reducing their duty from 5% to free. The CEO of Customs was satisfied that no substitutable goods were produced in Australia, meeting the core criteria for a TCO, and thus issued TCO No. 0901706. The instrument does not affect the rights of any person other than the Commonwealth and does not impose any liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0901706 is part of the Customs Act 1901, which applies to individuals and entities seeking tariff concessions on imported goods. This particular instrument pertains to Bianco Walling Machines, which applied for a tariff concession order (TCO) for certain concrete slab working machines. The scope of the Act includes goods that are the subject of a TCO application, provided they do not fall under the goods specified in section 269SJ that cannot be subject to a TCO. The geographic reach of this Act is national, as it operates under the Commonwealth of Australia and applies to all imports subject to the Customs Act 1901. The Act does not impose any liabilities on any person other than the Commonwealth and does not disadvantage anyone who had rights as of the date of registration. The application of the Act can be extended or restricted through subordinate instruments as specified in the Customs Tariff Act 1995.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0901706 under the Customs Act 1901, as detailed in the explanatory statement, include sections 269C, 269P, and 269SJ. Section 269C outlines the criteria for determining whether an application for a Tariff Concession Order (TCO) meets the core requirements. Specifically, for a TCO application to be valid, there must be no substitutable goods produced in Australia in the ordinary course of business on the day the application is lodged. Section 269P details the process by which the Chief Executive Officer of Customs (CEO) must make a written order (TCO) if the application meets these core criteria, specifying the applicable item in Schedule 4 of the Customs Tariff Act 1995. Section 269SJ, on the other hand, lists goods that are not eligible for a TCO.
The Act imposes several obligations on parties and entities it governs. For example, an applicant seeking a TCO must ensure that their application is made in good faith and provides all necessary information for the CEO to determine if the core criteria are met. The CEO, in turn, is required to assess the application against these criteria, publish a notice in the Gazette inviting submissions from interested parties, and make a decision on the application based on the information provided. In this case, the CEO did not receive any submissions opposing the TCO application for concrete slab working machines, which facilitated the approval process.
Failure to comply with the provisions of the Customs Act 1901 and the related regulations can result in various civil and criminal consequences. For instance, providing false or misleading information in a TCO application could lead to penalties under section 283 of the Customs Act 1901, which may include fines up to 10,000 penalty units or imprisonment for up to five years, or both. Additionally, any person who knowingly contravenes a provision of the Act or regulations may be subject to further penalties as specified in the relevant sections of the legislation. The Act ensures that the rights of importers are protected and can benefit from duty refunds for goods imported since the TCO is taken to have come into force, without imposing any new liabilities on them.