EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0920923
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.
Boyne Smelters applied for a TCO in respect of certain aluminium potline cell tending assembly plant on 19 June 2009.
Instrument
TCO No 0920923 was made on 14 September 2009. It declares that those certain aluminium potline cell tending assembly plant 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. 0920923 is taken to have come into force on 19 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 Tariff Concession Instrument No. 0920923 was enacted in 2009 under the Customs Act 1901 to provide tariff concessions for specific goods. This instrument aims to address the economic viability of importing certain goods by reducing or eliminating customs duty, thus making these goods more affordable and competitive within the Australian market. The Customs Act 1901, enacted by the Australian Parliament, establishes the framework for customs duties and tariff concessions, allowing the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that provide tariff benefits for particular goods. The policy objective of this legislation is to support industries by reducing the cost of imported goods, thereby fostering economic growth and competitiveness. This instrument specifically targets Boyne Smelters’ application for certain aluminium potline cell tending assembly plant, where the general rate of duty has been reduced to free, effective from the date of the application on 19 June 2009.
Scope and Application
The Tariff Concession Instrument No. 0920923, under Part XVA of the Customs Act 1901, applies to individuals or entities that have applied for and been granted a Tariff Concession Order (TCO) by the Chief Executive Officer of Customs. Specifically, it applies to Boyne Smelters in relation to certain aluminium potline cell tending assembly plant, which have been granted a concessionary rate of customs duty, reducing it from the general rate of 5% to free. The instrument’s scope is national, extending across Australia, as it operates within the legislative framework established by the Commonwealth under the Customs Act 1901. The TCO does not apply to goods specified in section 269SJ of the Act, which are ineligible for tariff concessions. The instrument’s effectiveness is further regulated by the Customs Tariff Act 1995, with the tariff concessions outlined in Schedule 4. Importantly, the TCO does not adversely affect any existing rights of individuals or entities as of the date of its registration, nor does it impose any new liabilities on persons other than the Commonwealth. Instead, it is designed to benefit importers by potentially allowing them to apply for a refund of duties paid on the specified goods since the date the TCO was taken to have come into force.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0920923 under the Customs Act 1901 (the Act) involve the application, assessment, and issuance of Tariff Concession Orders (TCOs) (sections 269C, 269F, and 269P(3)). Section 269F allows an individual to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods. If the CEO determines that the application meets the core criteria set out in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, the CEO must issue a TCO. This TCO effectively declares that the specified goods are subject to a lower rate of customs duty, as outlined in the Customs Tariff Act 1995 (the Tariff).
The obligations and requirements imposed by the Act on the parties involved, primarily the applicant and the CEO, are straightforward. An applicant must submit a valid TCO application to the CEO, ensuring that the application details the goods for which the tariff concession is sought. The CEO, in turn, has the obligation to assess the application against the criteria in section 269C and decide whether to issue a TCO. Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to lodge submissions if they believe the TCO should not be made (subsection 269K(1)). If no submissions are received, the CEO proceeds to issue the TCO.
The Act delineates specific consequences and penalties for non-compliance with its provisions. While the Explanatory Statement does not explicitly mention offences or penalties associated with breaching the Act in the context of TCOs, the general framework of the Customs Act 1901 and related regulations would typically include provisions for penalties for non-compliance. These could involve fines or other sanctions for incorrect declarations, misrepresentation, or failure to adhere to the stipulated procedures. The specifics would depend on the broader legal context and any relevant amendments or subsidiary legislation. The TCO itself ensures that the rights of existing importers are not adversely affected and allows them to apply for a refund of duties paid on goods imported since the TCO came into force.