EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0906171
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.
Infrastructure Technologies applied for a TCO in respect of certain lining material in rolls on 23 February 2009.
Instrument
TCO No 0906171 was made on 15 May 2009. It declares that those certain lining material in rolls 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. 0906171 is taken to have come into force on 23 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, provides a framework for the administration of customs duties and related matters. The Tariff Concession Instrument No. 0906171 was introduced on 15 May 2009 to address the specific needs of certain industries by providing tariff concessions on particular goods. The instrument was developed in response to an application from Infrastructure Technologies for tariff concessions on certain lining materials in rolls. The instrument aims to ensure that such goods, which are not substitutable by Australian-produced items, are subject to a reduced rate of customs duty, thereby promoting industry competitiveness and efficiency.
The instrument was created to streamline the process for applying for tariff concessions, ensuring that the Chief Executive Officer of Customs can efficiently assess and approve applications where appropriate. The policy objective is to facilitate the importation of goods that are not readily available domestically, thus supporting the economic activity of businesses that rely on these specific imports. The process ensures that any person may object to the concession if they believe it should not be granted, and in this instance, no objections were received. The instrument came into effect on the date the application was lodged, providing immediate benefits to importers who can now apply for duty refunds on goods imported since that date.
Scope and Application
The Customs Act 1901, through its Part XVA, allows for the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These orders provide a lower rate of customs duty for specific goods, provided they meet certain criteria. The legislation applies to individuals and entities that apply for a TCO concerning goods that are not specified in section 269SJ, which lists goods ineligible for a TCO. The scope of the Act encompasses all industries that import goods subject to customs duty, and it is enforced across the Commonwealth of Australia. The application of the Act is further clarified by its exclusions, notably the goods listed in section 269SJ, which are permanently ineligible for tariff concessions. Additionally, the Act may extend its application through subordinate instruments, which provide further definitions and operational details. The TCO process involves an application, a core criteria assessment by the CEO, and potential publication of the application in the Gazette to invite submissions, although no submissions were received in this instance. The commencement of the TCO is retroactive to the date of the application, ensuring that the rights of importers are protected and that no new liabilities are imposed retroactively.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0906171, under the Customs Act 1901, establish the conditions under which the Chief Executive Officer of Customs (CEO) may grant a Tariff Concession Order (TCO). Section 269F allows an application for a TCO to be made by a person to the CEO. If the CEO is satisfied that the application is valid and not for goods specified in section 269SJ, they must then assess whether the application meets the core criteria outlined in section 269C. This involves ensuring that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the CEO is satisfied that the application meets these core criteria, they are required under section 269P(3) to issue a written TCO. This TCO declares that the goods specified in the application will be subject to a prescribed tariff rate, as specified in Schedule 4 of the Customs Tariff Act 1995.
The obligations and requirements imposed by this Act on the parties involved are primarily focused on the process of applying for and granting a TCO. The CEO must review each TCO application to determine its validity and whether it meets the core criteria. This includes verifying that no substitutable goods were produced in Australia at the time the application was lodged. If the CEO determines that the application meets the criteria, they must issue a written TCO and declare the specified goods to be subject to the prescribed tariff rate. Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to submit any objections to the proposed TCO. In this case, the CEO received no submissions opposing the TCO for certain lining material in rolls.
Under the Customs Act 1901, various offences, penalties, or civil/criminal consequences can arise from breaches of the legislation or its regulations. However, the specific penalties for breaches of the Tariff Concession Orders are not detailed in the provided text. Generally, breaches of customs laws can result in penalties such as fines or imprisonment, depending on the severity and nature of the offence. The Customs Act 1901 and related regulations provide the framework within which these penalties are applied. For example, section 126 of the Customs Regulations 1993 may impose fines or imprisonment for offences such as fraudulent conduct related to customs duties. However, the maximum penalties for such offences are not specified in the explanatory statement for TCO No. 0906171.