EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0909923
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.
Csr Monier Wonderlich Pty Ltd applied for a TCO in respect of certain roof tiles turnstiles on 24 March 2009.
Instrument
TCO No 0909923 was made on 12 June 2009. It declares that those certain roof tiles turnstiles 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. 0909923 is taken to have come into force on 24 March 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. 0909923, enacted in 2009, is an instrument made under the Customs Act 1901 to provide tariff concessions for certain roof tiles turnstiles. The instrument was introduced to address the gap in tariff rates for specific goods not produced in Australia, ensuring fair treatment for imported goods that have no Australian substitutes. The Tariff Concession Order (TCO) was made by the Chief Executive Officer of Customs, who determined that no substitutable goods were produced in Australia, thus meeting the core criteria outlined in section 269C of the Act. The objective of the TCO, as specified in the explanatory statement, is to grant a lower rate of customs duty for these particular roof tiles turnstiles, which are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a duty rate of free as opposed to the general rate of 5%. The TCO came into effect on 24 March 2009, the date the application was lodged, and it does not disadvantage any person or impose new liabilities, while allowing importers to apply for duty refunds for goods imported since the TCO's effective date.
Scope and Application
The Customs Act 1901, through Part XVA, establishes a framework for the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This act applies to any person or entity that seeks to import goods eligible for a lower rate of customs duty under a TCO. The scope of the act extends nationally, covering all jurisdictions within Australia. Applications for TCOs must meet specific criteria, including the absence of substitutable goods produced in Australia at the time of application, as defined under sections 269C and 269D of the Act. Notably, the act excludes certain goods from TCO eligibility as specified in section 269SJ. Subordinate instruments may further refine the application and interpretation of the act, although the primary legislation outlines the fundamental principles and criteria. The act’s application is triggered by the lodging of a valid TCO application, with no retroactive disadvantages to third parties, as stipulated in subsection 269S(1).
Key Provisions
The key operative sections of this legislation, specifically the Tariff Concession Order (TCO) No. 0909923, revolve around the granting of tariff concessions under the Customs Act 1901 (section 269F). The Chief Executive Officer of Customs (CEO) must assess whether a TCO application meets the core criteria outlined in section 269C, which includes verifying that no substitutable goods were produced in Australia on the day the application was lodged (section 269P(3)). If the application satisfies these criteria, the CEO is obligated to make a written order, effectively reducing the customs duty on the specified goods (section 269P(3)). In this case, the TCO No. 0909923 pertains to certain roof tiles turnstiles, which now enjoy a zero rate of duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, down from the general rate of 5%.
The Act imposes several obligations on the parties involved. The CEO is mandated to publish a notice in the Gazette, inviting submissions from any interested parties who may have reasons to oppose the TCO (subsection 269K(1)). Furthermore, the TCO must be made in writing and declare that the specified goods are subject to the prescribed tariff item (subsection 269P(3)). The Act also ensures that the rights of persons other than the Commonwealth are not adversely affected by the TCO, and it provides a mechanism for importers to apply for a refund of duty paid on goods imported since the effective date of the TCO (paragraph 126(1)(r) of the Regulations).
Failure to comply with the requirements of the Customs Act 1901 may result in various consequences. While the explanatory statement does not explicitly enumerate specific offences or penalties for breaches, it is implicit that non-compliance with tariff regulations could lead to legal repercussions. The Act provides for the imposition of fines and penalties for breaches of customs laws, though the exact nature and extent of these penalties are detailed in other sections of the Customs Act and associated regulations. It is important for entities involved in importing and exporting activities to adhere strictly to the provisions of the Act to avoid potential civil or criminal liabilities.