EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0902310
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.
Bluescope Steel Limited applied for a TCO in respect of certain sensor cables on 22 January 2009.
Instrument
TCO No 0902310 was made on 14 April 2009. It declares that those certain sensor cables 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. 0902310 is taken to have come into force on 22 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 Customs Act 1901, enacted by the Australian Parliament, establishes a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. These orders are designed to lower the rate of customs duty for certain goods, providing economic benefits to businesses by reducing the cost of imported materials that do not have domestic alternatives. The Tariff Concession Instrument No. 0902310, introduced to address the specific needs of Bluescope Steel Limited regarding sensor cables, exemplifies this legislative intent. This instrument was issued after it was confirmed that no substitutable goods were being produced in Australia, thus meeting the core criteria outlined in the Customs Act. The policy objective is to facilitate the import of necessary goods without imposing a financial burden on businesses that cannot source these goods domestically.
Scope and Application
The Tariff Concession Instrument No. 0902310, pursuant to the Customs Act 1901, applies to any entity or person who has applied for a Tariff Concession Order (TCO) for goods specified in the Instrument. This legislation specifically pertains to sensor cables, and it applies to the entire Commonwealth of Australia. The instrument grants a concession by reducing the customs duty on these specific goods to zero, provided that no substitutable goods are being produced in Australia in the ordinary course of business. The Act extends its application by allowing the Chief Executive Officer of Customs to make such orders, subject to the core criteria outlined in the Act, ensuring that the application does not pertain to goods that cannot be subject to a TCO as per section 269SJ of the Act. The Act does not impose any liabilities on any person other than the Commonwealth and does not disadvantage any person's rights as they stood on the date of registration. The scope of the Act is further clarified and potentially expanded through subordinate instruments, which may provide additional details and criteria for applications and concessions.
Key Provisions
The Customs Act 1901, as amended by Tariff Concession Instrument No. 0902310, introduces a mechanism for tariff concessions on certain goods. Specifically, section 269F of the Act allows for an application to be made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) concerning particular goods (269F). If the application is not for goods specified in section 269SJ, which are ineligible for TCOs, the CEO must assess whether it meets the core criteria outlined in section 269C. A TCO application satisfies these criteria if, on the date of application, no substitutable goods are produced in Australia in the ordinary course of business (269C). Definitions of key terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" can be found in sections 269D, 269E, and 269F respectively.
The obligations under this Act require the CEO to publish a notice in the Gazette once a TCO application is accepted as valid, inviting any interested party to submit reasons why the TCO should not be made (269K). In the case of Instrument TCO No. 0902310, no submissions were received, indicating that no objections were raised against the concession. The TCO itself comes into force on the date the application is lodged (269S(1)), which for this specific TCO was 22 January 2009. Importantly, the TCO does not retroactively affect the rights of any person, nor does it impose any liabilities on individuals or entities other than the Commonwealth, for actions taken before the TCO's effective date (269S(1)).
Should there be any breaches of the provisions under this Act, specific penalties or consequences might apply. However, the explanatory statement does not provide detailed information on potential offences, penalties, or specific legal consequences for non-compliance. It is essential for any party involved to adhere strictly to the outlined procedures and criteria to avoid any potential legal repercussions, as the Customs Act 1901 and its associated regulations could impose penalties for non-compliance. The precise nature of these penalties would typically be found within the relevant sections of the Customs Act 1901 or the Customs Regulations 1998.