EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0918146
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.
Terex Mining Australia applied for a TCO in respect of certain apron feeder parts on 28 May 2009.
Instrument
TCO No 0918146 was made on 21 August 2009. It declares that those certain apron feeder parts 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. 0918146 is taken to have come into force on 28 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 Tariff Concession Instrument No. 0918146 was enacted in 2009 under the Customs Act 1901 to address the issue of applying lower customs duty rates on specific imported goods, provided certain conditions are met. This instrument was introduced to facilitate the process of granting tariff concessions for goods not produced in Australia and that have no substitutable goods produced domestically. The Customs Act 1901 allows the Chief Executive Officer of Customs to make such tariff concession orders if the application complies with the core criteria set out in the Act. The policy objective of this legislation is to support Australian industries by providing tariff relief where appropriate, thus encouraging the importation of goods that are not locally produced and ensuring that Australian consumers and businesses have access to a diverse range of products at reduced costs.
Scope and Application
The Customs Act 1901, as amended by Tariff Concession Instrument No. 0918146, facilitates the application of lower rates of customs duty on specified goods through the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This legislative instrument is applicable to entities and individuals involved in the importation of goods that meet the criteria outlined in the Act, particularly those seeking tariff concessions for goods not produced domestically or for which no substitutable goods are produced in Australia. The scope of this legislation encompasses various industries reliant on imported goods and extends across the entire Commonwealth of Australia, providing a streamlined process for businesses to apply for and obtain tariff reductions on specific items. However, the Act excludes certain goods from eligibility, as detailed in section 269SJ, which lists those goods that cannot be subject to a TCO. The Act also allows for further specification and regulation of the application process through subordinate instruments, ensuring flexibility and precision in its implementation.
Key Provisions
The main operative sections of this legislation include section 269F, which allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods, provided the goods are not specified in section 269SJ of the Customs Act 1901 (the Act). Section 269C specifies that an application for a TCO meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Subsection 269P(3) mandates 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) applies.
The Act imposes obligations on the CEO to determine whether an application for a TCO meets the core criteria as defined in section 269C. If the CEO is satisfied that the application meets the criteria, they must make a written order as specified in section 269P(3). Additionally, under subsection 269K(1) of the Act, the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made. In this case, the CEO did not receive any submissions. Furthermore, the TCO is taken to have come into force on the day the application for the TCO was lodged, as per subsection 269S(1).
There are no explicit offences, penalties, or civil/criminal consequences for breach stated in the explanatory statement. However, the Act ensures that the TCO does not affect the rights of any person (other than the Commonwealth) in a way that disadvantages them or imposes liabilities for actions taken before the TCO was registered. The rights of importers will be beneficially affected, and under paragraph 126(1)(r) of the Regulations, importers can apply for a refund of duty on goods imported since the TCO came into force. The TCO does not impose any liabilities on any person, thereby maintaining the balance of rights and obligations within the legislative framework.