EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0919065
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.
Evonik Degussa Pty Ltd applied for a TCO in respect of certain methacrylic acid and esters of methacrylic acid mixtures on 05 June 2009.
Instrument
TCO No 0919065 was made on 28 August 2009. It declares that those certain methacrylic acid and esters of methacrylic acid mixtures 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. 0919065 is taken to have come into force on 05 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 Parliament of Australia to regulate customs duties and related matters. Specifically, Tariff Concession Instrument No. 0919065, enacted in 2009, addresses the need to provide tariff concessions for certain goods, ensuring that Australian businesses can compete effectively in the global market. The instrument was introduced to provide relief to importers by allowing for a lower rate of customs duty on specified goods, provided certain criteria are met. The Customs Act 1901 empowers the Chief Executive Officer of Customs to make Tariff Concession Orders if an application is deemed to meet the core criteria, which includes ensuring that no substitutable goods are produced in Australia. This policy objective aims to support Australian industries by reducing the cost of imported goods, thereby enhancing their competitiveness without imposing liabilities on importers or disadvantaging existing rights.
Scope and Application
The Customs Act 1901, specifically Part XVA, facilitates the establishment of Tariff Concession Orders (TCOs) which lower the customs duty on specified goods. These orders are made by the Chief Executive Officer of Customs (CEO) following an application under section 269F, provided the goods do not fall under the exclusions listed in section 269SJ. A TCO is issued if the CEO is satisfied that the application meets the core criteria, which include ensuring that no substitutable goods are produced in Australia in the ordinary course of business, as defined by sections 269C, 269D, 269E, and 269F of the Act. Once granted, a TCO applies from the date the application was lodged, as per subsection 269S(1), and it benefits importers by potentially allowing them to claim refunds on duties paid before the TCO's effective date. The TCO does not disadvantage any person or impose new liabilities on them. The application of this legislation is national in scope, governed by Commonwealth law, and it applies to any person or entity involved in the importation of the specified goods. The CEO is required to consult with interested parties by publishing a notice in the Gazette, although in the case of TCO No. 0919065, no submissions were received.
Key Provisions
The Customs Act 1901, through Part XVA, facilitates the implementation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) (section 269F). These orders lower the rate of customs duty on specified goods. To apply for a TCO, an individual or entity must submit an application to the CEO, ensuring it does not concern goods specified in section 269SJ, which are ineligible for TCOs. The CEO's decision to proceed hinges on the application meeting the core criteria set out in section 269C. For an application to meet these criteria, it must be demonstrated that no substitutable goods were produced in Australia on the day the application was lodged, as defined by sections 269D (goods produced in Australia), 269E (ordinary course of business) and 269F (substitutable goods). If the CEO is satisfied with the application, they must issue a written TCO (section 269P(3)).
The obligations under the Act for the CEO include assessing whether an application meets the core criteria and making a decision within the stipulated timeframe. In the case of TCO No. 0919065, the CEO was satisfied that the application for certain methacrylic acid and esters of methacrylic acid mixtures met the criteria, as no substitutable goods were being produced in Australia. The CEO subsequently issued a TCO, effective from the date the application was lodged (section 269S(1)). Furthermore, the CEO must publish a notice in the Gazette inviting any interested party to lodge submissions against the TCO, although in this instance, no submissions were received (subsection 269K(1)).
For breaches or non-compliance with the requirements set out in the Customs Act 1901, the Act does not explicitly state specific offences, penalties, or consequences. However, general legal principles may apply, where breaches of the Act could potentially lead to civil or criminal proceedings. The specific consequences would depend on the nature and severity of the breach, and could include fines or imprisonment. The Act ensures that the implementation of TCOs does not adversely affect the rights of individuals or entities other than the Commonwealth, and does not impose liabilities on such parties for actions taken before the TCO came into effect (subsection 269S(1)).