EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0926433
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.
Andrew Kohn Pty Ltd applied for a TCO in respect of certain sodium bicarbonate blast system anilox roller cleaning machines on 23 July 2009.
Instrument
TCO No 0926433 was made on 09 October 2009. It declares that those certain sodium bicarbonate blast system anilox roller cleaning machines 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. 0926433 is taken to have come into force on 23 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 Tariff Concession Instrument No. 0926433 under the Customs Act 1901 was enacted to provide a tariff concession for certain sodium bicarbonate blast system anilox roller cleaning machines. The Act, enacted by the Australian Parliament, aims to facilitate trade by reducing customs duty on specific goods, provided they meet the stipulated criteria. The Tariff Concession Order (TCO) process under section 269F of the Act allows applicants to seek reduced duty rates if the goods are not substitutable by Australian-produced goods. In this instance, Andrew Kohn Pty Ltd successfully applied for a TCO on 23 July 2009, which was granted on 9 October 2009, resulting in a tariff rate of free for the specified machines, down from the general rate of 5%. This TCO became effective from the date of application, 23 July 2009, and does not affect any pre-existing rights or impose new liabilities on any party except the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0926433 under the Customs Act 1901 applies to specific goods, in this case, certain sodium bicarbonate blast system anilox roller cleaning machines, which Andrew Kohn Pty Ltd sought a concession for. The instrument is designed to facilitate a lower rate of customs duty for goods that are subject to a Tariff Concession Order (TCO), as long as no substitutable goods are produced in Australia in the ordinary course of business. This concession applies across the Commonwealth of Australia and affects the importation of these specific goods by granting them duty-free status, as opposed to the general rate of 5% duty. The scope of the Act extends to ensuring that the application for a TCO meets the core criteria outlined in section 269C of the Act, which requires that no substitutable goods are produced domestically. The Act does not specify exclusions or exemptions beyond those goods outlined in section 269SJ of the Customs Act 1901 that cannot be subject to a TCO. Additionally, the instrument operates under the jurisdictional authority of the Chief Executive Officer of Customs, who must decide on the validity of the TCO application and publish notices in the Gazette inviting submissions, although in this instance, no submissions were received.
Key Provisions
The Customs Act 1901 (the Act) permits the Chief Executive Officer of Customs (the CEO) to make Tariff Concession Orders (TCOs) under section 269F. These orders apply a lower rate of customs duty to specified goods, provided the application for the TCO meets the core criteria outlined in sections 269C, 269B, and 269D of the Act. Specifically, a TCO application will be approved if, on the day it was lodged, no substitutable goods were produced in Australia in the ordinary course of business. For the purposes of these provisions, 'substitutable goods' refers to goods produced in Australia that can be used in the same way as the goods specified in the TCO application. In the case of Tariff Concession Instrument No. 0926433, the CEO made a written order declaring that certain sodium bicarbonate blast system anilox roller cleaning machines are subject to a TCO because no substitutable goods were produced in Australia.
The Act imposes several obligations on the parties involved. Firstly, any person seeking a TCO must apply to the CEO under section 269F. The CEO must then decide whether the application meets the core criteria. If satisfied, the CEO must make a written TCO under section 269P(3). Additionally, as per section 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any interested parties who may oppose the TCO. In this case, no submissions were received, allowing the TCO to proceed. The CEO also has the responsibility to ensure that the rights of persons (other than the Commonwealth) are not adversely affected by the TCO, as stipulated in section 269S(1).
The Act includes provisions for penalties and consequences for breaches. If an entity or individual fails to comply with the requirements of a TCO or provides false or misleading information in an application, they may face criminal or civil penalties. Although the exact penalties are not specified in the text, they can include fines and imprisonment for serious breaches. Additionally, the Act allows for the imposition of financial penalties for non-compliance, which could include the payment of back duties and interest. The specifics of these penalties would be governed by other sections of the Customs Act and related regulations.