EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0932615
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.
Radum Pty Ltd applied for a TCO in respect of certain coaxial composite cables on 02 September 2009.
Instrument
TCO No 0932615 was made on 27 November 2009. It declares that those certain coaxial composite cables 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. 0932615 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. 0932615, enacted under the Customs Act 1901, addresses the need for a streamlined process to grant tariff concessions for specific goods, thereby facilitating trade by reducing customs duty on eligible items. This instrument was introduced to address the gap in the legislative framework that could potentially hinder the import of certain goods by imposing unnecessary tariffs. Enacted by the Chief Executive Officer of Customs, the instrument aims to ensure that the application of tariff concessions aligns with the policy objective of promoting fair and efficient trade practices by providing relief where appropriate. The instrument provides a clear pathway for businesses to apply for tariff concessions, subject to the core criteria outlined in the Customs Act, ensuring that the process is both transparent and accessible.
Scope and Application
The Tariff Concession Order No. 0932615 under the Customs Act 1901 applies to specific goods, namely certain coaxial composite cables, and reduces their customs duty rate to free from the general rate of 5%. This order was made by the Chief Executive Officer of Customs after Radum Pty Ltd applied for tariff concessions on these goods, and it is applicable from the date the application was lodged, 2 September 2009. The Act enables individuals or entities to apply for tariff concessions if certain criteria are met, such as the absence of substitutable goods produced in Australia. The order does not affect the rights of any person as at the date of registration and does not impose any liabilities on any person. The CEO must also publish a notice in the Gazette inviting submissions from interested parties, although in this instance, no submissions were received. The scope of the Act extends to all goods that meet the specified criteria for tariff concessions, and it is enforced at a national level under Australian law.
Key Provisions
The Tariff Concession Instrument No. 0932615, under the Customs Act 1901, provides for tariff concessions for specific goods, in this case, certain coaxial composite cables. Section 269F allows an individual or entity to apply for a Tariff Concession Order (TCO) in respect of particular goods, provided they are not those listed in section 269SJ, which excludes certain goods from this scheme. The CEO of Customs must assess whether the application meets the core criteria set out in section 269C, specifically determining if no substitutable goods were produced in Australia on the date the application was lodged.
To meet these criteria, as per section 269C, the application must satisfy the conditions that no goods, produced in Australia in the ordinary course of business and capable of being put to the same use as the goods in question, were being produced on the application date. Definitions for terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269D, 269E, and 269B, respectively. Once the CEO is satisfied that the core criteria are met, a written order, the TCO, must be made under section 269P(3), declaring the goods eligible for a reduced rate of customs duty.
Obligations imposed by the Act on the parties involved include the requirement for Radum Pty Ltd to submit a valid application under section 269F and for the CEO to assess whether the application meets the core criteria specified in section 269C. The CEO must also publish a notice in the Gazette inviting submissions from any person who may have reasons to oppose the TCO, as per section 269K(1). If the CEO does not receive any submissions, they must proceed to make the TCO. The TCO itself comes into force on the date the application was lodged, as stipulated in section 269S(1).
Failure to comply with the provisions of the Customs Act 1901 may result in various consequences. While the Act does not explicitly detail specific offences or penalties for breaches related to the TCO process, breaches of customs regulations generally can lead to civil or criminal penalties. For example, knowingly making a false statement or providing false information in an application could result in fines or imprisonment. The maximum penalties can vary depending on the severity and intent behind the breach but can include substantial fines and imprisonment for serious offences. The specific penalties would be determined by the courts based on the circumstances of each case.