EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0933117
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.
Barrett Burston Malting applied for a TCO in respect of certain malt germinating tank and kilning tank cleaners on 07 September 2009.
Instrument
TCO No 0933117 was made on 27 November 2009. It declares that those certain malt germinating tank and kilning tank cleaners 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. 0933117 is taken to have come into force on 07 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. 0933117 was introduced in 2009 under the Customs Act 1901 to provide tariff concessions for specific goods. This instrument was enacted to address the need for a streamlined process in granting tariff concessions, ensuring that the scheme outlined in Part XVA of the Customs Act 1901 could be effectively implemented. The Customs Act 1901 is administered by the Australian Parliament and the policy objective of this instrument is to facilitate trade by reducing the customs duty on certain imported goods, thus promoting economic efficiency and competitiveness. The instrument was made by the Chief Executive Officer of Customs after Barrett Burston Malting applied for a tariff concession order in respect of malt germinating tank and kilning tank cleaners. The decision to grant the concession was based on the absence of substitutable goods produced in Australia, aligning with the core criteria set out in section 269C of the Act. The tariff concession order came into effect from the date the application was lodged, on 7 September 2009, and it provides for a free rate of duty on these specified goods, down from the general rate of 5%.
Scope and Application
The Tariff Concession Instrument No. 0933117 under the Customs Act 1901 applies to specific goods, in this instance, certain malt germinating tank and kilning tank cleaners, as designated by Barrett Burston Malting. The Act applies to any entity or individual involved in the importation of these goods within Australia. The instrument is part of the broader scheme established by Part XVA of the Customs Act 1901, which allows for Tariff Concession Orders (TCOs) to be made by the Chief Executive Officer of Customs, providing for a lower rate of customs duty on specified goods. The TCO, once issued, is applicable across the Commonwealth of Australia and comes into force on the date the application was lodged, in this case, 7 September 2009. The Act excludes certain goods from eligibility for a TCO as specified in section 269SJ of the Act, and in this instance, the CEO determined that the malt germinating tank and kilning tank cleaners did not have substitutable goods produced in Australia in the ordinary course of business, thereby meeting the core criteria for a concession. The application of the TCO is further extended or restricted through subordinate instruments such as the Customs Tariff Act 1995, which sets out the specific duty rates.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0933117, under the Customs Act 1901, include sections 269C, 269B, 269D, 269E, and 269P. Section 269C specifies that a Tariff Concession Order (TCO) application meets the core criteria if no substitutable goods are produced in Australia on the day the application is lodged. Section 269B defines the terms ‘goods produced in Australia’, ‘ordinary course of business’, and ‘substitutable goods’. Section 269D provides the meaning for ‘goods produced in Australia’, section 269E defines ‘ordinary course of business’, and section 269P(3) mandates that if the Chief Executive Officer (CEO) of Customs is satisfied that the application meets the core criteria, they must make a written order declaring the goods to which the TCO applies.
The Act imposes several obligations and requirements on the parties involved. Firstly, the CEO must assess whether the TCO application meets the core criteria as outlined in section 269C. If the CEO is satisfied, they must make a written order under section 269P(3). Furthermore, the CEO is required under section 269K(1) to publish a notice in the Gazette inviting any person who considers there are reasons why the TCO should not be made to lodge a submission with the CEO. In this instance, the CEO did not receive any submissions in response to the notice.
The Act does not explicitly outline offences, penalties, or civil/criminal consequences for breach concerning the issuance of a TCO. However, non-compliance with the conditions and requirements set out in the Customs Act 1901 or the Customs Tariff Act 1995 could lead to penalties under those respective statutes. The Tariff Concession Instrument No. 0933117 itself does not specify maximum penalties but implies that adherence to the legislative framework is crucial to avoid any legal ramifications.