EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0920466
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.
Wastedrive Pty Ltd applied for a TCO in respect of certain steel containers on 17 June 2009.
Instrument
TCO No 0920466 was made on 4 September 2009. It declares that those certain steel containers 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. 0920466 is taken to have come into force on 17 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 and exportation of goods, including the imposition and collection of customs duties. To address the need for flexibility in the application of customs duties and to support specific economic or trade policies, Part XVA of the Act allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that provide for lower rates of duty on certain goods. The Tariff Concession Instrument No. 0920466 was introduced to provide a tariff concession for certain steel containers, effective from the date of application, 17 June 2009. The instrument was made after Wastedrive Pty Ltd applied for the concession on this date, and after the CEO was satisfied that no substitutable goods were produced in Australia in the ordinary course of business, meeting the core criteria set out in the Act. This concession resulted in the affected goods being subject to a duty rate of free, as opposed to the general rate of 5%.
Scope and Application
The Tariff Concession Instrument No. 0920466 under the Customs Act 1901 applies to the specific goods for which Wastedrive Pty Ltd made an application, namely certain steel containers, and it is administered by the Chief Executive Officer of Customs. The instrument is applicable to any person or entity that imports these steel containers into Australia, providing them with a concessional rate of customs duty. The scope of the Act extends nationally, as it is a Commonwealth Act, and applies to all states and territories within Australia. However, it is important to note that the Act excludes certain goods from being subject to a Tariff Concession Order, as specified in section 269SJ of the Act. Additionally, the application of this Act can be further defined or extended through subordinate instruments, which can include regulations or other legislative measures that provide more detailed guidelines or criteria. The Act does not disadvantage any person or impose liabilities for actions taken before the instrument's effective date, thereby protecting the rights of importers and ensuring that they can apply for a refund of duty on goods imported since the day the Tariff Concession Order was taken to have come into force.
Key Provisions
The main operative sections of the Tariff Concession Order (TCO) No. 0920466 pertain to the process by which the Chief Executive Officer (CEO) of Customs decides whether to grant a tariff concession order, as outlined in sections 269C, 269P, and 269S of the Customs Act 1901. Section 269C sets forth the criteria for the concession, stipulating that the goods in question must not have substitutable equivalents produced in Australia at the time of the application. Section 269P requires the CEO to make a written order if these criteria are met, and Section 269S addresses the commencement date of the concession, which is the date the application was lodged. This particular order, No. 0920466, specifies that certain steel containers qualify for the tariff concession, thereby exempting them from the general 5% customs duty rate and applying a duty rate of free.
The obligations imposed by the Act on the parties involved include the requirement for applicants, such as Wastedrive Pty Ltd in this case, to ensure their applications meet the core criteria stipulated in the Act. The CEO has the obligation to thoroughly assess the applications against these criteria and to publish notices inviting public submissions if necessary. Additionally, the CEO must ensure that any published concession order does not disadvantage any person or impose liabilities for actions taken prior to the order's effective date. The CEO's role also includes the timely processing and decision-making on applications to avoid any unwarranted delays in tariff concession effectiveness.
Failure to comply with the requirements of the Customs Act 1901 and the associated regulations could lead to various consequences. While the specific section does not outline offences or penalties within the explanatory statement, breaches of the Act generally could result in civil or criminal penalties. For instance, providing false information in an application might lead to criminal charges, potentially carrying fines and imprisonment, as stipulated by other sections of the Act. Civil penalties might include fines or the requirement to pay duties retrospectively if it is found that the concession was improperly granted. The exact penalties would depend on the nature and severity of the breach, as well as any relevant case law or subsequent legislative amendments.