EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0914119
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.
Bluescope Steel applied for a TCO in respect of certain spike roll crusher shafts on 28 April 2009.
Instrument
TCO No 0914119 was made on 17 July 2009. It declares that those certain spike roll crusher shafts 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. 0914119 is taken to have come into force on 28 April 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. 0914119, enacted in 2009, amends the Customs Act 1901 to provide a concessional tariff rate for certain spike roll crusher shafts, addressing the issue of high import duties on these specific goods. This instrument was introduced to facilitate easier access to these goods by reducing their customs duty from the general rate of 5% to a duty-free rate. Enacted by the Chief Executive Officer of Customs under the authority granted by the Customs Act 1901, the policy objective of this measure is to ensure that Australian industries can access necessary materials at a reduced cost, thereby supporting local manufacturing and economic growth without imposing additional liabilities or disadvantaging existing stakeholders.
The instrument was developed following an application by Bluescope Steel, and after considering the core criteria outlined in the Customs Act 1901, the CEO confirmed that no substitutable goods were produced in Australia, thus satisfying the conditions for a tariff concession. After the application was deemed valid, a notice was published in the Gazette inviting public submissions, none of which were received. The tariff concession became effective from the date the application was lodged, 28 April 2009, and it does not affect any pre-existing rights or impose new liabilities on individuals or entities other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0914119, made under the Customs Act 1901, applies to entities such as Bluescope Steel, which have applied for tariff concessions on specific goods, in this case, certain spike roll crusher shafts. The Act enables the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that provide lower rates of customs duty on goods not produced in Australia, provided they meet certain criteria. The application of this instrument is national, as it is part of the Commonwealth's legislative framework. There are specific exclusions under section 269SJ of the Act, which detail goods that cannot be subject to a TCO. The CEO must ensure that no substitutable goods are produced in Australia, as outlined in sections 269C and 269D of the Act, before granting a TCO. The application process includes a public notice period allowing any interested parties to voice their opposition, although no submissions were received in this instance. The TCO came into force on the date the application was lodged, 28 April 2009, and it does not affect pre-existing rights or impose liabilities on anyone for actions taken prior to its registration.
Key Provisions
The key operative sections of Tariff Concession Instrument No. 0914119, made under the Customs Act 1901, are sections 269C, 269F, 269P, and 269S. Section 269F allows for an application to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). If the application meets the core criteria, as outlined in section 269C, and there are no substitutable goods produced in Australia in the ordinary course of business, the CEO must make a written order (TCO) as per section 269P(3). Section 269S outlines the commencement date of the TCO, which is the date on which the application was lodged.
The Act imposes several obligations on the parties involved. The applicant, in this case Bluescope Steel, must submit an application to the CEO for a TCO (section 269F). The CEO must then assess whether the application meets the core criteria and ensure that no substitutable goods are produced in Australia in the ordinary course of business (section 269C). If the application is valid, the CEO must make a written TCO (section 269P(3)). Furthermore, the CEO is required to publish a notice in the Gazette inviting submissions from any person who may have reasons why the TCO should not be made (subsection 269K(1)).
Breaching the obligations or requirements outlined in the Act can lead to civil or criminal consequences. While the explanatory statement does not specify exact penalties, general provisions in the Customs Act 1901 might apply. For instance, any false or misleading information provided in the application process could result in fines or imprisonment under section 235 of the Act, which pertains to false statements and fraud. Non-compliance with the duty refund provisions under the Regulations might also attract penalties.
The Tariff Concession Instrument No. 0914119, which was made on 17 July 2009, provides significant tariff relief for certain spike roll crusher shafts, setting their duty rate at free, down from the general rate of 5%. This relief is effective from 28 April 2009, the date the application was lodged. Importantly, the TCO does not disadvantage any person other than the Commonwealth or impose new liabilities on them, as it only affects the rights of importers beneficially by allowing them to apply for a refund of duty on goods imported since the TCO's effective date.
Overall, the Tariff Concession Instrument No. 0914119 serves to provide tariff relief for specific goods under the Customs Act 1901, subject to certain criteria being met. It outlines the application process, assessment criteria, and the obligations of both the applicant and the CEO. While specific penalties for non-compliance are not detailed in the explanatory statement, breaches could result in civil or criminal consequences under the broader Customs Act 1901 framework.