EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0939202
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.
Jog White Maltings applied for a TCO in respect of certain malt germinator turning and or loading and or unloading machines on 19 October 2009.
Instrument
TCO No 0939202 was made on 08 January 2010. It declares that those certain malt germinator turning and or loading and or unloading machines 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. 0939202 is taken to have come into force on 19 October 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 Commonwealth Parliament, provides a framework for the imposition of customs duty on imported goods. It establishes a scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO) to provide a lower rate of customs duty on certain goods. The Tariff Concession Instrument No. 0939202 was introduced to address the specific need of Jog White Maltings for a tariff concession on certain malt germinator turning and loading or unloading machines. By declaring that these machines are subject to a free rate of duty, the instrument ensures that no substitutable goods were produced in Australia, thus meeting the core criteria for a TCO. The policy objective is to provide tariff relief to importers of these machines, facilitating the import process and potentially enhancing the competitiveness of Australian businesses that rely on these machines.
Scope and Application
The Tariff Concession Instrument No. 0939202 under the Customs Act 1901 applies to specific goods, in this case certain malt germinator turning and or loading and or unloading machines, which are subject to a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs (CEO). The Act applies to entities that import these goods, effectively providing them with a concession on the rate of customs duty. The CEO must determine that no substitutable goods were produced in Australia in the ordinary course of business to grant a TCO. The instrument extends to the entire Commonwealth of Australia, impacting the customs duty regime nationally. Exclusions include goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The TCO does not impose liabilities on any person and does not affect the rights of any person as at the date of registration in a way that disadvantages them or imposes liabilities for actions taken before the registration date. The CEO is mandated to publish a notice in the Gazette inviting submissions from any person who may oppose the TCO; however, in this instance, no submissions were received. The TCO came into effect on 19 October 2009, the day the application was lodged.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0939202 under the Customs Act 1901 include section 269F, which allows for the application of a Tariff Concession Order (TCO) by a person in respect of goods, and section 269P(3), which mandates the Chief Executive Officer of Customs (the CEO) to issue a TCO if satisfied that the application meets the core criteria. Section 269C of the Act specifies the core criteria for a TCO, which is fulfilled if no substitutable goods are produced in Australia on the day the application is lodged. This instrument, TCO No. 0939202, declares that certain malt germinator turning and or loading and or unloading machines are subject to a TCO, thereby applying a free rate of duty on these goods as per item 50 of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes specific obligations on the parties involved in the TCO process. The applicant, such as Jog White Maltings in this case, must submit an application to the CEO for a TCO. The CEO, upon receiving the application, must verify whether it meets the core criteria as stipulated in section 269C. If the CEO is satisfied that the application meets these criteria, they are required to issue a written TCO. Additionally, the CEO must publish a notice in the Gazette inviting any person to lodge submissions if they believe the TCO should not be made. In this instance, no submissions were received, leading to the issuance of TCO No. 0939202.
There are no specific offences, penalties, or civil/criminal consequences outlined in the explanatory statement for breach of the provisions of the TCO. However, the general legal framework under the Customs Act 1901 may provide for penalties in cases of non-compliance with customs regulations. The Act ensures that the rights of persons are not adversely affected by the TCO, particularly protecting importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO. The TCO does not impose any new liabilities on any person other than the Commonwealth.
In summary, the Tariff Concession Instrument No. 0939202 facilitates tariff concessions for specific goods by establishing a streamlined application and approval process overseen by the CEO. The process ensures that the core criteria are met before a TCO is issued, and it mandates the publication of notices in the Gazette to allow for public input. The rights of importers are protected, and the TCO does not impose new liabilities on any party, thereby ensuring a balanced and fair application of the concession.