EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0919303
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.
Moly Metals Pty Ltd applied for a TCO in respect of certain crusher bearings on 09 June 2009.
Instrument
TCO No 0919303 was made on 04 September 2009. It declares that those certain crusher bearings 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. 0919303 is taken to have come into force on 09 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, enacted by the Parliament of Australia, provides a framework for the administration of customs and excise duties. Among its provisions, Part XVA of the Act facilitates the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs, which grant preferential rates of customs duty on certain goods. The Tariff Concession Instrument No. 0919303, effective from 9 June 2009, was introduced to address a specific gap identified by Moly Metals Pty Ltd, who sought a tariff concession for certain crusher bearings. This instrument was made under the authority provided by section 269F of the Customs Act 1901, ensuring that the application met the core criteria stipulated in section 269C. The primary policy objective behind this legislation is to support Australian industries by reducing customs duties on goods where no substitutable goods are produced domestically, thereby promoting competitive advantage and economic efficiency.
Scope and Application
The Tariff Concession Instrument No. 0919303, made under the Customs Act 1901, applies to goods specified in the instrument, namely certain crusher bearings. The Act permits the Chief Executive Officer of Customs to make Tariff Concession Orders, which effectively lower the customs duty on the specified goods if certain criteria are met. The application for a Tariff Concession Order was made by Moly Metals Pty Ltd, and the instrument was registered on 4 September 2009. The Act applies to any entity or person seeking to import the specified goods and thus benefit from the reduced rate of duty, which changes from a general rate of 5% to free duty under this order. The application of the TCO is national in scope, operating across all states and territories of Australia, as per the jurisdictional reach of the Customs Act 1901. There are specific exclusions as per section 269SJ of the Act, which lists goods that cannot be subject to a TCO. The instrument does not disadvantage any person other than the Commonwealth and does not impose any liabilities on persons in respect of actions taken prior to the registration date of the TCO. The instrument can be extended or modified through subordinate instruments, as permitted under the Customs Act 1901.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0919303 under the Customs Act 1901 (sections 269C, 269B, 269D, 269E, 269F, 269P(3), 269K(1), and 269S(1)) establish the conditions under which Tariff Concession Orders (TCOs) can be applied for and granted. Essentially, these sections require that applications for TCOs must be submitted to the Chief Executive Officer (CEO) of Customs, who then assesses whether the application meets the core criteria (section 269C). If no substitutable goods are produced in Australia on the day the application is lodged, the CEO must make a written order declaring the goods eligible for a concession (section 269P(3)). The CEO must also publish a notice in the Gazette inviting submissions from any interested parties (section 269K(1)).
The Act imposes several obligations on the parties involved. The applicant, in this case, Moly Metals Pty Ltd, must ensure their application for a TCO is complete and meets the core criteria. The CEO of Customs has the responsibility to assess the application, consult with relevant parties if necessary, and make a decision based on the criteria. Additionally, the CEO must publish a notice in the Gazette to allow for any submissions opposing the TCO (section 269K(1)). Once a TCO is granted, it is crucial for importers to be aware of their rights under the TCO and to apply for duty refunds where applicable.
There are no specific offences outlined in the Tariff Concession Instrument No. 0919303. However, any breaches of the Customs Act 1901 or related regulations could result in civil or criminal consequences. Penalties for breaches can include fines and imprisonment, depending on the severity of the offence. The exact penalties would be determined based on the specific provisions of the Customs Act and any applicable regulations. For example, under section 242 of the Customs Act, a person who commits an offence against the Act may be liable for a fine of up to 10,000 penalty units or imprisonment for up to five years, or both.