EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0932607
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.
Seghers Applied Pty Ltd applied for a TCO in respect of certain pelletiser oil heaters on 02 September 2009.
Instrument
TCO No 0932607 was made on 27 November 2009. It declares that those certain pelletiser oil heaters 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. 0932607 is taken to have come into force on 02 September 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. 0932607, enacted in 2009, is a measure under the Customs Act 1901 to address the need for tariff concessions on specific imported goods. This legislative instrument was introduced to facilitate the granting of tariff concessions by the Chief Executive Officer of Customs, who assesses applications to determine if they meet the core criteria. The policy objective of the Customs Act 1901, as reflected in this instrument, is to provide tariff relief for imported goods where there are no substitutable goods produced domestically, thereby potentially lowering costs for importers and encouraging the importation of necessary goods. The instrument was issued following an application by Seghers Applied Pty Ltd for tariff concessions on certain pelletiser oil heaters, which was approved after no substitutable goods were found to be produced in Australia. The tariff rate for these goods was reduced to free, effective from the date of the application.
Scope and Application
The Tariff Concession Instrument No. 0932607, made under Part XVA of the Customs Act 1901, applies to the concession of customs duty on certain pelletiser oil heaters. This legislation facilitates the reduction of customs duty for specified goods, provided that the application meets the core criteria set out in the Act. The instrument specifically targets importers of these goods, offering them a lower duty rate, which is free under this TCO, compared to the general rate of 5%. The geographic scope of this Act is national, operating within the framework of Australian customs law, and it does not extend beyond the Commonwealth. The Act’s application is restricted to instances where no substitutable goods are produced in Australia, as defined under sections 269C, 269D, and 269E of the Customs Act 1901. The TCO does not disadvantage any person by affecting rights as at the date of registration nor does it impose any liabilities on any person. This instrument is effective from the date the application was lodged, 02 September 2009, and any subsequent importation of the specified goods can benefit from the duty concession.
Key Provisions
The Tariff Concession Instrument No. 0932607 under the Customs Act 1901 (the Act) introduces a concession on customs duty for certain pelletiser oil heaters (section 269F). The application for a Tariff Concession Order (TCO) was submitted by Seghers Applied Pty Ltd on 2 September 2009. Pursuant to section 269C, the Chief Executive Officer of Customs (the CEO) must determine whether the application meets the core criteria, which include that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (section 269P(3)). If the criteria are met, a TCO is issued, which declares that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, with a specified rate of duty (section 269P(3)).
The obligations imposed by the Act on the CEO include reviewing the TCO application to ensure it meets the core criteria (section 269C), and if satisfied, making a written TCO (section 269P(3)). The CEO must also publish a notice in the Gazette inviting any submissions opposing the TCO within a reasonable timeframe (subsection 269K(1)). In this case, no submissions were received in response to the notice. The TCO is effective from the date of the application, which is 2 September 2009 (subsection 269S(1)).
Breaching the conditions set out in the Act can result in legal consequences. The CEO is mandated to ensure that the core criteria are met before issuing a TCO, and failure to adhere to these provisions could lead to invalidity of the TCO. Additionally, any person who knowingly or negligently submits false information in an application for a TCO may face civil or criminal penalties as prescribed by the relevant legislation. The specific penalties are not detailed in the explanatory statement but would typically include fines and, in severe cases, imprisonment. The precise penalties would be outlined in other sections of the Customs Act 1901 or related regulations.