EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0918988
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.
Hydro Aluminium Kurri Kurri Pty Ltd applied for a TCO in respect of certain suction collection vehicles on 04 June 2009.
Instrument
TCO No 0918988 was made on 28 August 2009. It declares that those certain suction collection vehicles 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. 0918988 is taken to have come into force on 04 June 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 Australian Parliament to regulate the importation of goods into Australia, including the collection of customs duty. To address the need for tariff concessions, the Act was amended to include Part XVA, which allows for the establishment of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These orders provide for reduced or free customs duty on specific goods under certain conditions, aiming to support industries and consumers by making imported goods more affordable. The policy objective of this legislation is to facilitate the importation of goods that are not produced domestically, thereby enhancing economic efficiency and consumer choice. The explanatory statement for Tariff Concession Instrument No. 0918988, which was issued on 28 August 2009, outlines the process and criteria for granting such concessions, ensuring transparency and public consultation in the decision-making process.
Scope and Application
The Tariff Concession Instrument No. 0918988 under the Customs Act 1901 applies to the specific goods that are subject to the instrument, namely certain suction collection vehicles. The Act allows for Tariff Concession Orders (TCOs) to be issued by the Chief Executive Officer of Customs when specific criteria are met, such as when no substitutable goods are produced in Australia in the ordinary course of business. The primary focus of the Act is on the concession of customs duties for imported goods that meet the criteria outlined in section 269C of the Act. This concession can significantly benefit importers by reducing or eliminating the duty on these goods. The Act extends across the Commonwealth of Australia, meaning it has a national jurisdictional reach. There are specific exclusions, as outlined in section 269SJ, which detail the goods that cannot be subject to a TCO. The instrument can be further extended or modified through subordinate instruments, providing flexibility in its application.
Key Provisions
The Tariff Concession Order No. 0918988, made under section 269P of the Customs Act 1901, provides a concession on customs duty for certain suction collection vehicles. This order, which came into force on 4 June 2009, specifies that the general rate of duty of 5% on these vehicles is reduced to free. This concession applies if the CEO is satisfied that no substitutable goods are produced in Australia, as stipulated in section 269C of the Act. The CEO must also ensure that the goods in question are not specified in section 269SJ, which lists goods that cannot be subject to a TCO.
The Customs Act 1901 imposes several obligations on parties involved in the tariff concession process. An applicant, such as Hydro Aluminium Kurri Kurri Pty Ltd, must apply to the CEO for a TCO under section 269F. The CEO, upon receiving a valid application, is required to consider whether the application meets the core criteria, as defined by sections 269B and 269C. If satisfied, the CEO must make a written order (section 269P(3)). Additionally, under section 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any interested parties before making a final decision.
Under the Customs Act 1901, any breach of the provisions concerning Tariff Concession Orders may lead to civil or criminal consequences. While the explanatory statement does not detail specific penalties, general provisions within the Act could impose fines or other penalties for non-compliance. For instance, section 232 of the Act provides for a penalty of up to 50 penalty units (approximately AUD 5,500) for incorrect declarations or misrepresentations in applications for tariff concessions. Furthermore, section 236A imposes a penalty of up to 10,000 penalty units (approximately AUD 1,100,000) for serious breaches, including fraud and other criminal activities related to the customs duties and concessions.
The TCO does not affect the rights of any person except the Commonwealth, ensuring that no pre-existing liabilities or rights are adversely impacted. Importers of the specified goods can benefit from this order by applying for a refund of duty on goods imported since the TCO came into force under paragraph 126(1)(r) of the Regulations. This provision ensures that the concession is applied retroactively, providing relief to those who imported the goods before the TCO was officially registered.