EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0910927
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.
Ahrens Group Pty Ltd applied for a TCO in respect of certain twelve wheel monorail machines on 31 March 2009.
Instrument
TCO No 0910927 was made on 19 June 2009. It declares that those certain twelve wheel monorail machines 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. 0910927 is taken to have come into force on 31 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. 0910927 was enacted in 2009 under the Customs Act 1901. This legislation was introduced to address the need for a streamlined process in granting tariff concessions for specific goods, allowing for a lower rate of customs duty where applicable. The Customs Act 1901, administered by the Parliament of Australia, aims to regulate the importation and exportation of goods, ensuring that customs duties are applied fairly and efficiently. The primary policy objective of this instrument is to support Australian businesses by providing tariff concessions where appropriate, thereby enhancing their competitiveness in the market. By allowing the Chief Executive Officer of Customs to issue Tariff Concession Orders, the Act facilitates the application process for reduced customs duties, provided the goods in question meet certain criteria, such as not having Australian-made equivalents.
Scope and Application
The Tariff Concession Instrument No. 0910927 under the Customs Act 1901 applies to the twelve wheel monorail machines for which Ahrens Group Pty Ltd submitted an application on 31 March 2009. This legislation is pertinent to entities or individuals involved in the importation of these specific goods, aiming to provide tariff concessions to reduce the customs duty from the general rate of 5% to free. The application of this instrument is contingent upon the Chief Executive Officer of Customs determining that no substitutable goods are produced in Australia, thereby meeting the core criteria outlined in section 269C of the Act. The scope of this Act is Commonwealth-wide, impacting trade practices across Australia. It is important to note that the application does not disadvantage any person other than the Commonwealth nor impose liabilities on such persons in respect of actions taken prior to the instrument's registration. The instrument's commencement date is effectively the day the application was lodged, 31 March 2009, as per subsection 269S(1) of the Act.
Key Provisions
The key operative sections of the Customs Act 1901 in relation to Tariff Concession Orders (TCOs) are primarily found in Part XVA, particularly sections 269F, 269C, 269B, 269P, and 269K. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO in respect of goods. The CEO must then decide if the application meets the core criteria (section 269C), which generally involves determining if no substitutable goods were produced in Australia on the day the application was lodged (section 269B). If the application is approved, the CEO must make a written order (section 269P(3)) and publish a notice in the Gazette (section 269K(1)) inviting any objections.
The Customs Act 1901 imposes several obligations and requirements on the parties involved. The CEO must ensure that any TCO application does not involve goods specified in section 269SJ, which excludes certain types of goods from eligibility. If the CEO is satisfied that the application meets the core criteria, they must make a TCO. Additionally, the CEO is required to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting submissions from any person who believes the TCO should not be made. The CEO must also consider any submissions received and respond appropriately.
There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the provisions related to TCOs in the Customs Act 1901 or the accompanying explanatory statement. The Act focuses on the procedural requirements for making TCOs and the conditions under which they can be issued. The explanatory statement clarifies that the TCO does not affect the rights of any person, except the Commonwealth, in a way that would disadvantage them or impose liabilities for actions taken before the TCO was registered.
In summary, the Customs Act 1901 establishes a structured process for applying for and granting Tariff Concession Orders, ensuring that the CEO follows specific criteria and procedures. The Act mandates that the CEO must consider applications carefully, consult the public, and make orders in accordance with the outlined conditions. While the Act itself does not detail specific penalties for non-compliance, the emphasis is on maintaining fairness and transparency in the process.