EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0904304
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.
Boc Ltd applied for a TCO in respect of certain welding leads on 10 February 2009.
Instrument
TCO No 0904304 was made on 08 May 2009. It declares that those certain welding leads 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. 0904304 is taken to have come into force on 10 February 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 for tariff concession orders (TCOs), which provide lower rates of customs duty on specified goods. This piece of legislation was introduced to address the need for a streamlined process through which businesses could apply for duty concessions on imported goods that are not domestically produced, thereby fostering fair trade practices and supporting industries that rely on imports. The Tariff Concession Instrument No. 0904304, made on 8 May 2009, exemplifies this process by granting a tariff concession to Boc Ltd for certain welding leads, reducing the duty from 5% to free, effective from the date of the application on 10 February 2009. This instrument ensures that no Australian businesses are disadvantaged while facilitating the importation of necessary goods.
Scope and Application
The Customs Act 1901, through the Tariff Concession Instrument No. 0904304, applies to individuals or entities that apply for tariff concessions for specific goods. This legislation allows for reduced customs duty rates on goods specified in a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs. The Act applies to all persons or entities that meet the criteria set forth in section 269C of the Act, specifically those who apply for a TCO in respect of goods not specified in section 269SJ, and for which no substitutable goods are produced in Australia in the ordinary course of business. The TCO No. 0904304, for instance, was issued for certain welding leads where it was determined that no substitutable goods were produced domestically, leading to a concession that lowered the duty rate from 5% to free. This Act has a national reach as it pertains to the Commonwealth of Australia and affects the importation process across the entire country. The application of this Act is not limited by geographic boundaries within Australia and applies uniformly across all states and territories. There are no stated exclusions or exemptions in the text, and the application of the Act is not extended or restricted through subordinate instruments. The Act ensures that any rights of importers are positively affected and that the TCO does not impose any liabilities on any person.
Key Provisions
The main operative sections of this legislation are sections 269F, 269C, 269B, 269P, and 269S of the Customs Act 1901, along with the related provisions in the Customs Tariff Act 1995. Section 269F allows for applications to the Chief Executive Officer of Customs (CEO) for Tariff Concession Orders (TCOs) on certain goods, provided those goods are not specified in section 269SJ. If the CEO determines that an application meets the core criteria outlined in sections 269C and 269B, they must make a written TCO as per section 269P(3). This TCO is then registered and comes into effect on the date the application was lodged, as per section 269S(1). In this case, Tariff Concession Order No. 0904304 was made on 8 May 2009, applying to certain welding leads as of 10 February 2009, the date the application was submitted.
The Customs Act 1901 imposes specific obligations on the CEO and any person seeking a TCO. The CEO must ensure that any application for a TCO is considered against the criteria in sections 269C and 269B, particularly checking whether substitutable goods are produced in Australia. If these criteria are met, the CEO must make a TCO. Additionally, the CEO is required to publish a notice in the Gazette (subsection 269K(1)) after accepting an application as valid, inviting submissions from interested parties. In the case of TCO No. 0904304, no submissions were received in response to this notice. Applicants must provide sufficient evidence and information to meet the core criteria, ensuring transparency and fairness in the TCO process.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the Act for failing to comply with the TCO process itself. However, any misuse or fraudulent claims related to the TCO may attract penalties under other sections of the Customs Act 1901 or related legislation. For example, providing false or misleading information in an application could potentially lead to penalties under section 246 of the Customs Act, which addresses offences related to false statements or documents. Such offences could result in substantial fines or imprisonment, depending on the severity of the breach. The Act ensures that the TCO does not disadvantage any person or impose liabilities for actions taken before the TCO’s effective date, safeguarding the rights of all parties involved.