EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0930934
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.
South Australian Water Corporation applied for a TCO in respect of certain sludge dewatering plant on 24 August 2009.
Instrument
TCO No 0930934 was made on 06 November 2009. It declares that those certain sludge dewatering plant 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. 0930934 is taken to have come into force on 24 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 Customs Act 1901, enacted by the Parliament of Australia, addresses the need for streamlined and efficient customs duty processes for specific goods. The Act allows for the creation of Tariff Concession Orders (TCOs) through which the Chief Executive Officer of Customs can apply a lower rate of customs duty on specified goods, provided certain criteria are met. This legislative instrument aims to facilitate trade by reducing the financial burden on importers for particular goods. TCO No. 0930934, made on 6 November 2009, is a specific instance where the South Australian Water Corporation applied for tariff concessions on certain sludge dewatering plant, resulting in a duty rate reduction from the general 5% to free. This particular order became effective from the date of application, 24 August 2009, and ensures that importers can claim refunds on duties paid since that date, without any adverse effects on other stakeholders.
Scope and Application
The Tariff Concession Instrument No. 0930934 under the Customs Act 1901 applies specifically to certain sludge dewatering plant, with the purpose of providing a tariff concession for these goods. The instrument was made in response to an application by the South Australian Water Corporation, and it was effective from the date the application was lodged, 24 August 2009. The instrument was published in the Gazette, inviting submissions from interested parties, though none were received. This instrument allows for a lower rate of customs duty, specifically a rate of free duty, for the goods specified, whereas the general rate of duty is 5%. This concession applies across the Commonwealth of Australia and is applicable to the import of these specific goods only. The instrument does not affect the rights of any person other than the Commonwealth and does not impose any liabilities on any person, including the rights of importers who may apply for a refund of duty on goods imported since the commencement date of the TCO.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0930934 under the Customs Act 1901 (the Act) include sections 269C, 269B, 269D, 269E, 269F, 269P, and 269SJ. Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO). The CEO must then determine if the application meets the core criteria, primarily whether no substitutable goods were produced in Australia on the day the application was lodged, as outlined in section 269C. Definitions for terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269B, 269D, and 269E. If the CEO is satisfied that the application meets the core criteria, they must make a written TCO under section 269P(3), specifying the goods to which the concession applies.
The obligations imposed by the Act on the parties or entities it governs include the requirement for applicants to ensure their applications for TCOs meet the core criteria and do not pertain to goods specified in section 269SJ. The CEO has the obligation to review applications, consult with relevant stakeholders by publishing a notice in the Gazette as per section 269K(1), and make a decision on whether to grant a TCO based on the criteria in section 269C. Importers of goods subject to a TCO have the obligation to apply for a refund of duty under paragraph 126(1)(r) of the Regulations if they imported the goods after the TCO came into force.
Breaches of the provisions within the Act may lead to civil or criminal consequences. While the explanatory statement does not detail specific offences or penalties, the Customs Act 1901 generally provides for penalties for non-compliance with customs regulations, which may include fines and imprisonment. The maximum penalties for breaches can vary depending on the severity and nature of the offence, but they are stipulated in the relevant sections of the Customs Act 1901 and associated regulations. The Act ensures that the rights of persons other than the Commonwealth are not adversely affected by the TCO, and it does not impose any liabilities on such persons.