EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0915101
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.
Saipem Comercio applied for a TCO in respect of certain chain anchor on 06 May 2009.
Instrument
TCO No 0915101 was made on 31 July 2009. It declares that those certain chain anchor 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. 0915101 is taken to have come into force on 06 May 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 was enacted by the Parliament of Australia and includes provisions for the making of Tariff Concession Orders (TCOs) to provide relief on customs duties for certain goods. The Customs Tariff Concession Instrument No. 0915101, introduced on 31 July 2009, addresses the issue of applying tariff concessions to specific goods not produced in Australia, thereby facilitating trade and potentially benefiting importers. The instrument was made following an application by Saipem Comercio for a TCO on certain chain anchors, which was accepted by the Chief Executive Officer of Customs (CEO) after determining that no substitutable goods were produced in Australia, thus meeting the core criteria under section 269C of the Act. The TCO effectively provides a free duty rate on the specified goods, enhancing their market accessibility while ensuring no adverse impact on existing rights or liabilities of persons other than the Commonwealth.
Scope and Application
The Customs Act 1901, specifically under Part XVA, establishes a framework through which Tariff Concession Orders (TCOs) can be implemented by the Chief Executive Officer of Customs (CEO). The Act applies to individuals or entities that seek tariff concessions for specific goods, provided these goods are not listed in section 269SJ, which details those ineligible for TCOs. The scope of the Act extends to ensuring that no substitutable goods are produced in Australia in the ordinary course of business as per section 269C, and the TCOs themselves are subject to certain core criteria outlined in the Act. The geographic reach of this legislation is national, operating under the authority of the Commonwealth. The Act allows for the application of subordinate instruments to extend or restrict its application, thereby providing flexibility in managing tariff concessions. The Act ensures that the implementation of a TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on such persons for actions taken prior to the registration of the TCO.
Key Provisions
The primary sections of this legislation, Customs Act 1901, involve the creation and application of Tariff Concession Orders (TCOs) under section 269F (1). An application for a TCO can be made by any person to the Chief Executive Officer of Customs (CEO). The CEO must assess whether the application meets the core criteria outlined in sections 269C, 269B, and 269D. If the application is deemed to meet these criteria, the CEO is obligated to issue a written TCO, specifying the goods and the reduced customs duty applicable as per the Tariff Concession Instrument No. 0915101.
The obligations under the Act primarily concern the CEO's role in assessing TCO applications. Section 269K(1) mandates the CEO to publish a notice in the Gazette inviting submissions from any interested parties regarding the proposed TCO. This notice serves as a public invitation for objections or feedback, ensuring transparency and the opportunity for stakeholder input before a TCO is finalised. In the specific case of Tariff Concession Instrument No. 0915101, no submissions were received, indicating a lack of opposition to the TCO for certain chain anchors.
The Act also outlines the consequences for non-compliance or improper application processes. If an application for a TCO does not meet the core criteria or if there is a failure to properly assess and issue a TCO when required, this could result in legal repercussions. Although the specific penalties are not detailed in the provided text, breaches of customs regulations generally carry significant fines and potential imprisonment under the broader customs legislation framework. For instance, section 269SJ specifies goods that cannot be subject to a TCO, and failure to adhere to this could lead to the nullification of the TCO and potential penalties for misrepresentation or fraud.
In summary, the Customs Act 1901 provides a structured process for applying and granting tariff concessions, with clear obligations for the CEO in assessing and issuing TCOs. The act ensures that the rights of all parties, particularly importers, are protected and that the process remains transparent and fair. Any breaches or non-compliance could lead to serious legal consequences, reinforcing the importance of adherence to the specified criteria and procedures.