EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0931307
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.
Csbp Ltd applied for a TCO in respect of certain liquid and or gas transfer marine loader arms on 26 August 2009.
Instrument
TCO No 0931307 was made on 13 November 2009. It declares that those certain liquid and or gas transfer marine loader arms 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. 0931307 is taken to have come into force on 26 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 was amended to include the scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). This was enacted to address the need for a structured process through which importers could apply for tariff concessions on goods. The objective was to provide a clear mechanism for determining when lower rates of customs duty could apply, ensuring fairness and predictability in the application of customs duties. The CEO was empowered to make these decisions, subject to certain criteria, thereby streamlining the process for tariff concessions and reducing the burden on applicants. The Parliament introduced this scheme to ensure that the application for tariff concessions is handled efficiently and transparently, while also allowing for public consultation on such applications.
Scope and Application
The Tariff Concession Instrument No. 0931307 under the Customs Act 1901 applies to entities seeking tariff concessions for certain goods, specifically liquid and gas transfer marine loader arms, in the context of imports. The application of this legislation is limited to cases where the goods in question are not substitutable by any products manufactured within Australia. The scope of the Act extends to the entire Commonwealth of Australia and is administered by the Chief Executive Officer of Customs, who is tasked with assessing applications for Tariff Concession Orders against the criteria stipulated in the Customs Act. The legislation does not apply to goods listed in section 269SJ of the Act, which excludes certain items from eligibility for tariff concessions. The instrument is effective from the date the application was lodged, 26 August 2009, and does not retroactively affect the rights of any party or impose liabilities for actions taken prior to its registration. Any person who considers a concession should not be granted has the opportunity to submit their views to the CEO, although in this instance, no submissions were received. The instrument also allows for refunds of duties paid on eligible goods imported since the commencement date.
Key Provisions
The main sections of this legislation establish the conditions under which a Tariff Concession Order (TCO) can be made under Part XVA of the Customs Act 1901. Specifically, section 269F allows an application to be made to the Chief Executive Officer (CEO) of Customs for a TCO in respect of goods, provided they are not specified in section 269SJ. The CEO must then determine if the application meets the core criteria outlined in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If these criteria are satisfied, the CEO must make a written order declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies, as per section 269P(3).
The Act imposes several obligations on the parties involved. The CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made, as per subsection 269K(1). In this instance, no submissions were received. Additionally, the TCO is considered to have come into force on the day the application was lodged, as stated in subsection 269S(1). Importers of the goods in question can apply for a refund of duty on goods imported since the TCO is deemed to have come into force under paragraph 126(1)(r) of the Regulations.
Failure to comply with the provisions of the Act can result in various consequences. However, the explanatory statement does not specify any particular offences or penalties for breaches related to the TCO. It is important to note that the TCO does not affect the rights of a person, other than the Commonwealth, as at the date of registration, nor does it impose any liabilities on any person in respect of anything done or omitted to be done before the date of registration.