EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0927139
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.
Bluescope Steel applied for a TCO in respect of certain pipe or tube fittings on 28 July 2009.
Instrument
TCO No 0927139 was made on 16 October 2009. It declares that those certain pipe or tube 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. 0927139 is taken to have come into force on 28 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 Parliament of Australia, established a framework for the administration of customs duties and provides for the making of Tariff Concession Orders (TCOs) to allow for tariff reductions on specific goods under certain conditions. This Act aims to address the gap in facilitating tariff reductions that can benefit businesses by lowering the cost of imported goods, provided no substitutable goods are produced in Australia. The Tariff Concession Instrument No. 0927139, issued under this Act, was introduced to provide tariff concessions for certain pipe or tube fittings, effective from 28 July 2009, after Bluescope Steel applied for a TCO on this date. The policy objective of the Act, as reflected in this instrument, is to ensure that such tariff concessions do not disadvantage any person other than the Commonwealth and to allow for potential duty refunds to importers of these goods.
Scope and Application
The Customs Act 1901, through Part XVA, establishes the framework for Tariff Concession Orders (TCOs), which are applicable to goods that meet specific criteria set forth in the legislation. This Act allows the Chief Executive Officer of Customs (CEO) to grant TCOs to applicants who can demonstrate that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business. When the CEO is satisfied that an application meets the core criteria, a TCO is issued, resulting in a lower rate of customs duty for the specified goods. Notably, this Act applies to individuals and entities seeking tariff concessions for goods entering Australia, with its jurisdictional reach extending to the Commonwealth level. There are specific exclusions, as outlined in section 269SJ, which detail the types of goods that cannot be subject to a TCO. The scope of the Act may be further refined through subordinate instruments, although the primary text does not explicitly detail these extensions or restrictions. The application process includes a mandatory publication in the Gazette to invite submissions, though no submissions were received for TCO No. 0927139.
Key Provisions
The primary sections of Tariff Concession Instrument No. 0927139 (F2010L00477) pertain to the issuance of Tariff Concession Orders (TCOs) under the Customs Act 1901 (the Act). Section 269F allows for applications to be made to the Chief Executive Officer (CEO) of Customs for a TCO in respect of goods. If the CEO is satisfied that the application is valid and that no substitutable goods are produced in Australia, as outlined in sections 269C and 269SJ, a TCO will be issued under section 269P(3). This order will declare that the specified goods are subject to a lower rate of customs duty, as set out in the Customs Tariff Act 1995.
In the context of the obligations imposed by the Act, the CEO has the responsibility to assess whether an application for a TCO meets the core criteria. This includes verifying that no substitutable goods are produced in Australia in the ordinary course of business, as defined by sections 269D and 269E. Furthermore, the CEO must publish a notice in the Gazette inviting submissions from any person who may have objections to the TCO, as stipulated in subsection 269K(1). In the case of TCO No. 0927139, no submissions were received, allowing the order to proceed.
Should a party or entity fail to comply with the requirements set forth by the Act, including the failure to submit accurate information or provide a legitimate application, potential consequences could arise. The Act does not explicitly detail offences or penalties for non-compliance with TCO applications; however, any breach of the Customs Act 1901 could lead to enforcement actions. These actions may include financial penalties, legal proceedings, or other administrative measures. It is important to note that the Act does not impose any liabilities on individuals or entities for actions taken prior to the registration of a TCO.
In summary, Tariff Concession Instrument No. 0927139, under the Customs Act 1901, provides a framework for the CEO of Customs to issue TCOs that reduce customs duty on specified goods, provided that no substitutable goods are produced in Australia. The CEO is mandated to assess applications against the core criteria and to invite public submissions. Failure to comply with the Act's requirements may result in enforcement actions, although specific penalties are not detailed in the legislation.