EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0921297
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.
Power Fasteners Pty Ltd applied for a TCO in respect of certain adhesive concrete and or masonry vinyl ester on 23 June 2009.
Instrument
TCO No 0921297 was made on 11 September 2009. It declares that those certain adhesive concrete and or masonry vinyl ester 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. 0921297 is taken to have come into force on 23 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, addresses the need for a structured approach to granting tariff concessions for certain goods, thereby facilitating trade and economic efficiency. This Act allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs), which reduce or eliminate customs duty on specified goods if certain criteria are met, such as the absence of Australian production of substitutable goods. The explanatory statement for Tariff Concession Instrument No. 0921297, made under this Act, details the process and decision regarding an application by Power Fasteners Pty Ltd for a TCO on certain adhesive concrete and masonry vinyl ester. The CEO's decision, based on the absence of substitutable goods produced in Australia, led to the concession of a 5% duty rate to free duty for these goods, effective from the date of the application on 23 June 2009. This instrument exemplifies the policy objective of the Customs Act 1901 to streamline trade by appropriately reducing tariff barriers where feasible.
Scope and Application
The Tariff Concession Instrument No. 0921297 under the Customs Act 1901 applies to goods specified in the instrument, namely certain adhesive concrete and masonry vinyl ester, for which a lower rate of customs duty has been declared applicable by the Chief Executive Officer of Customs. This application of a tariff concession order (TCO) is intended for cases where the goods subject to the order are not substitutable by any goods produced in Australia in the ordinary course of business, as stipulated under section 269C of the Act. The instrument specifically targets the reduction of customs duty on these particular goods from the general rate of 5% to a duty-free status, benefiting importers by potentially entitling them to a refund of duties paid on such goods imported since the date the TCO is deemed to have come into force. The geographical reach of this legislation is national, applying across Australia as per the provisions of the Customs Act 1901. Any exclusions or exemptions are determined by the specific criteria outlined in sections 269SJ and 269P(3) of the Act, ensuring that the concession does not apply to goods that are already produced domestically or would otherwise be subject to exclusion. The application of the TCO can be extended or clarified through subordinate instruments, ensuring its effective and precise implementation within the framework of the Customs Act 1901.
Key Provisions
The main operative sections of this legislation, specifically the Customs Act 1901, focus on the process for applying for and making Tariff Concession Orders (TCOs) as detailed in sections 269F, 269C, and 269P. Section 269F allows an individual or entity to apply to the Chief Executive Officer (CEO) of Customs for a TCO concerning certain goods. If the CEO determines that the application is not for goods specified in section 269SJ, they must assess whether the application meets the core criteria as outlined in section 269C. If the application meets these criteria, a TCO is made under section 269P(3), which declares the goods to which a specific item of the Customs Tariff applies, effectively reducing the customs duty rate.
The Act imposes several obligations on the parties involved. The CEO must decide whether an application meets the core criteria by ensuring, on the day of application, that no substitutable goods are produced in Australia in the ordinary course of business, as per section 269C. Furthermore, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections to the making of a TCO, as stated in subsection 269K(1). The CEO must also consider any submissions received in response to the published notice.
For breaches of the provisions set forth in this legislation, there are no explicit offences, penalties, or consequences mentioned in the explanatory statement. However, it is implied that non-compliance with the terms of a TCO, once granted, could potentially lead to administrative or legal consequences, such as the denial of duty refunds or other financial penalties. The focus of the legislation appears to be more on establishing a clear process for tariff concessions rather than detailing punitive measures for non-compliance.