EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0910407
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.
Enviroaer Industries Pty Ltd applied for a TCO in respect of certain screen separators on 27 March 2009.
Instrument
TCO No 0910407 was made on 12 June 2009. It declares that those certain screen separators 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. 0910407 is taken to have come into force on 27 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 Customs Act 1901, enacted by the Australian Parliament, provides a framework for the imposition of customs duties and the management of imports and exports. One notable instrument under this Act is Tariff Concession Instrument No. 0910407, issued in 2009. This instrument aims to address the problem of ensuring fair trade practices by providing tariff concessions on specific goods, which in turn promotes economic efficiency and competitiveness. The policy objective is to allow for the application of lower customs duty rates on goods that are not produced in Australia, thereby encouraging the importation of these goods and potentially reducing costs for businesses and consumers. The instrument was enacted by the Chief Executive Officer of Customs following an application from Enviroaer Industries Pty Ltd for tariff concessions on certain screen separators, which were declared free of duty upon meeting the core criteria outlined in the Customs Act.
Scope and Application
The Tariff Concession Instrument No. 0910407 applies to the Customs Act 1901, specifically under Part XVA which outlines the procedure for issuing Tariff Concession Orders (TCOs). This legislation is applicable to entities or individuals who seek to import goods that are not produced in Australia and for which a lower rate of customs duty can be applied. The scope of this Act extends across the Commonwealth of Australia, as it is a federal law. The Act excludes certain goods from being subject to a TCO as specified in section 269SJ of the Customs Act 1901. The application for a TCO is assessed by the Chief Executive Officer of Customs, who must ensure that the application meets core criteria including the absence of substitutable goods produced in Australia. The TCO No. 0910407, which concerns certain screen separators, came into force on the date the application was lodged, 27 March 2009, and does not retroactively affect any rights or impose liabilities on persons other than the Commonwealth.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0910407 include sections 269F, 269C, 269P(3), and 269K(1) of the Customs Act 1901, which govern the application and approval process for Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO. Section 269C specifies that a TCO application meets the core criteria if, on the day of application, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) mandates that if the CEO is satisfied the application meets these criteria, a written order must be made declaring the goods to which the TCO applies. Section 269K(1) requires the CEO to publish a notice in the Gazette, inviting submissions on the application as soon as practicable after it is accepted as valid.
The Customs Act 1901 imposes several obligations on parties involved in the TCO process. The CEO must determine whether a TCO application meets the core criteria, which involves verifying that no substitutable goods were produced in Australia on the day the application was lodged. If the CEO is satisfied that the criteria are met, they must make a written TCO. Additionally, upon accepting a TCO application, the CEO is required to publish a notice in the Gazette, inviting any interested party to submit their views on why the TCO should not be made. This ensures transparency and provides an opportunity for relevant stakeholders to voice their concerns.
Failure to comply with the provisions of the Customs Act 1901, particularly in relation to the TCO process, can lead to various civil and criminal consequences. For instance, if an entity submits an application for a TCO without meeting the core criteria, this could be considered a breach of the Act. While specific offences and penalties are not detailed in the explanatory statement, general provisions of the Customs Act 1901 may impose fines and other penalties for non-compliance. The CEO, as the authority responsible for overseeing the TCO process, has the power to enforce these penalties to ensure adherence to the Act's requirements.
In summary, Tariff Concession Instrument No. 0910407 operates under the framework set by sections 269F, 269C, 269P(3), and 269K(1) of the Customs Act 1901. The CEO is tasked with assessing TCO applications, publishing notices in the Gazette, and issuing written orders if the criteria are satisfied. The Act imposes obligations on applicants and the CEO, and non-compliance can lead to civil or criminal consequences, although specific penalties are not detailed in the explanatory statement.