EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0929534
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.
Marine and Civil Construction applied for a TCO in respect of certain stainless and structural steel wharf fender system parts on 12 August 2009.
Instrument
TCO No 0929534 was made on 30 October 2009. It declares that those certain stainless and structural steel wharf fender system parts 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. 0929534 is taken to have come into force on 12 August 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. 0929534, made under the Customs Act 1901, addresses the need to facilitate the import of specific goods that are not produced domestically, thus encouraging trade and potentially reducing costs for importers. Enacted by the Chief Executive Officer of Customs, this instrument aims to streamline the process for obtaining tariff concessions, thereby promoting economic efficiency and supporting businesses that rely on importing particular goods. This legislative measure was introduced to ensure that the application process for tariff concessions is straightforward and accessible, while also providing a mechanism for public consultation to maintain transparency and fairness in the decision-making process.
Scope and Application
The Tariff Concession Instrument No. 0929534, issued under the Customs Act 1901, applies to certain stainless and structural steel wharf fender system parts by granting a tariff concession to reduce the duty on these goods from the general rate of 5% to free. This applies to entities involved in the importation of these specific goods and pertains to the transactions involving their importation. The geographic reach of this legislation is national, as it applies across Australia under the Commonwealth jurisdiction. The application of this instrument does not extend to goods specified in section 269SJ of the Customs Act 1901, which are ineligible for tariff concessions. The CEO of Customs makes the decision to grant the concession if the application meets the core criteria set out in the Act, primarily focusing on the absence of substitutable goods produced in Australia. The instrument was made effective from 12 August 2009, the date the application was lodged, and does not affect the rights of any person as at the date of registration or impose any liabilities on individuals or entities for actions taken prior to the registration of the tariff concession.
Key Provisions
The Tariff Concession Order (TCO) No. 0929534, established under section 269F of the Customs Act 1901, provides for a reduction in customs duty for specific stainless and structural steel wharf fender system parts. This reduction is applied in accordance with item 50 of Schedule 4 to the Customs Tariff Act 1995, where the general duty rate of 5% is waived, making the duty for these goods free (section 269P(3)). This order is contingent upon the Chief Executive Officer of Customs (CEO) determining that no substitutable goods are produced in Australia on the date the application was lodged, as stipulated in section 269C of the Act.
Entities or individuals who apply for a TCO, such as Marine and Civil Construction in this case, must ensure that their application aligns with the criteria set out in the Customs Act. Specifically, the applicant must demonstrate that the goods in question are not substitutable by Australian-produced goods. The CEO has the responsibility to verify these claims and, if satisfied, must issue a written TCO. Additionally, under section 269K(1), the CEO is mandated to publish a notice in the Gazette, inviting any interested parties to submit objections to the TCO. In this instance, no submissions were received, facilitating the progression of the TCO.
Failure to comply with the requirements set out in the Customs Act and the Tariff Concession Orders can result in significant legal consequences. The Act does not specify particular offences or penalties for breaches related to TCOs. However, general provisions of the Customs Act may apply, potentially leading to fines or other penalties for non-compliance. Furthermore, if a TCO is found to have been improperly granted, it could be subject to judicial review, with the potential for the order to be quashed if it is deemed to be unlawful or unjust.