EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0923935
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.
Reliance Worldwide applied for a TCO in respect of certain refined copper capillary fittings on 08 July 2009.
Instrument
TCO No 0923935 was made on 21 September 2009. It declares that those certain refined copper capillary fittings 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. 0923935 is taken to have come into force on 08 July 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 Australian Parliament, establishes a framework for administering customs duties and other taxes on imported goods. The Act provides for the imposition of tariff concession orders (TCOs) to offer reduced customs duty rates on specific goods under certain conditions. The explanatory statement for Tariff Concession Instrument No. 0923935 details the process and application of a TCO in respect of certain refined copper capillary fittings, with the primary aim of facilitating trade by lowering the duty burden on these goods. The instrument was made on 21 September 2009, following an application by Reliance Worldwide on 8 July 2009, and it came into force on the date the application was lodged. The instrument ensures that the rights of importers are positively affected and that no liabilities are imposed on any person other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0923935 under the Customs Act 1901 applies to a specific type of refined copper capillary fittings, providing them with a concessionary rate of customs duty. The Act allows for Tariff Concession Orders (TCOs) to be made by the Chief Executive Officer of Customs (the CEO) for goods that are not substitutable and are not produced in Australia in the ordinary course of business. This concession was applied to certain refined copper capillary fittings after Reliance Worldwide applied for the TCO on 8 July 2009, and the CEO was satisfied that no substitutable goods were produced in Australia. The geographic reach of this legislation is national, as it is part of the Commonwealth's customs regime. The Act applies to any entity or person importing the specified goods and provides them with a tariff concession, thereby reducing the customs duty from the general rate of 5% to free. The rights of importers are beneficially affected, allowing them to apply for a refund of duty on goods imported since the day the TCO came into force. Importantly, the TCO does not disadvantage any person other than the Commonwealth or impose any liabilities on any person for actions taken before the TCO was registered. The application of the Act can be extended or restricted through subordinate instruments, but no such instruments are noted in the provided text.
Key Provisions
The Tariff Concession Instrument No. 0923935 under the Customs Act 1901 (section 269F) establishes a tariff concession order (TCO) for certain refined copper capillary fittings. This order, issued by the Chief Executive Officer of Customs, sets a zero duty rate for these goods, differing from the general duty rate of 5% (section 269P(3)). The TCO came into effect on the date the application was lodged, which was 08 July 2009 (subsection 269S(1)).
The obligations imposed by this Act on the entities it governs include the requirement for the CEO of Customs to consider the application for a TCO and ensure it meets the core criteria, which is that no substitutable goods were produced in Australia at the time of application (sections 269C and 269SJ). The CEO must also publish a notice in the Gazette inviting any interested parties to submit their views on the proposed TCO (subsection 269K(1)). In this case, no submissions were received, leading to the issuance of TCO No. 0923935.
Any breaches of the obligations or requirements set out in the Customs Act 1901 can lead to various consequences. For instance, if an entity fails to adhere to the conditions set out in a TCO, they could face civil or criminal penalties. However, the explanatory statement does not detail specific offences, penalties, or consequences related to the non-compliance with TCOs. Typically, penalties for breaches of the Customs Act can range from fines to imprisonment, depending on the severity and intent of the breach.