EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0910430
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.
Halliburton Pty Ltd applied for a TCO in respect of certain liner hanger on 27 March 2009.
Instrument
TCO No 0910430 was made on 19 June 2009. It declares that those certain liner hangers 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. 0910430 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, as amended, provides for a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (CEO). Enacted by the Parliament of Australia, this Act aims to facilitate the import of goods by applying lower rates of customs duty under specific circumstances. The 2009 instrument, TCO No. 0910430, was introduced to address the specific issue of tariff concessions for certain liner hangers, ensuring that these goods, which have no substitutable Australian-produced equivalents, receive duty relief. This legislative measure is designed to encourage the importation of goods that are not domestically produced, thereby supporting market access and potentially lowering costs for businesses and consumers. The policy objective is to streamline customs processes and reduce the financial burden on importers of these particular goods.
Scope and Application
The Tariff Concession Instrument No. 0910430 under the Customs Act 1901 pertains to the granting of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This Act applies to entities or individuals who seek tariff concessions for specific goods imported into Australia. The primary scope of this Act encompasses the application process for TCOs and the criteria that must be met for the concession to be approved, specifically ensuring that no substitutable goods are produced in Australia. The Act allows for the reduction or exemption of customs duty on certain imported goods if it is determined that there are no domestic alternatives. The geographical reach of this legislation is national, as it is governed by the Commonwealth under the Customs Act 1901. The Act excludes certain goods, as outlined in section 269SJ, which cannot be subject to a TCO. Additionally, the application of the Act may be extended or clarified through subordinate instruments such as regulations, which can provide further detail on the interpretation and implementation of the Act’s provisions.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0910430 (F2009L03881) relate to the granting of tariff concession orders (TCOs) under the Customs Act 1901. Section 269F allows individuals to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO is satisfied that the application is not for goods listed in section 269SJ, which are ineligible for a TCO, the CEO must determine if the application meets the core criteria set out in section 269C. A TCO application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged, as defined by sections 269D and 269E. If the CEO is satisfied, they must make a written TCO order specifying that the goods in question are subject to a prescribed item in Schedule 4 of the Customs Tariff Act 1995, thereby applying a lower rate of duty.
The obligations imposed by this Act primarily concern the CEO of Customs. When a TCO application is received, the CEO must ensure that it is not for goods listed in section 269SJ and must check if the core criteria are met. If the application meets these criteria, the CEO must issue a written TCO order. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties, although in this case, no submissions were received.
The Act also outlines the commencement of the TCO. According to section 269S(1), the TCO is deemed to come into force on the day the application was lodged. This means that for TCO No. 0910430, which was applied for on 27 March 2009, the TCO is effective from that date. Importantly, this TCO does not affect any existing rights or impose new liabilities on anyone except the Commonwealth, ensuring that the rights of importers are beneficially affected, and they can apply for duty refunds on goods imported since the TCO came into force.
The Act does not explicitly list offences or penalties for breach in this context. However, any failure to comply with the conditions of the TCO or any fraudulent application could potentially lead to civil or criminal consequences under broader provisions of the Customs Act 1901 or related legislation. Typically, penalties for breaches involving the Customs Act can include fines and imprisonment, though the exact penalties would depend on the specific nature and severity of the breach.