EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0940172
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.
Melbourne Precast Concrete applied for a TCO in respect of certain concrete shape moulding placement system on 23 October 2009.
Instrument
TCO No 0940172 was made on 08 January 2010. It declares that those certain concrete shape moulding placement system 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. 0940172 is taken to have come into force on 23 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 Australian Parliament, provides a framework for the regulation of customs duties. Specifically, Part XVA of the Act allows for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs, which can lower the customs duty rates on certain goods. This mechanism was introduced to address the need for tariff flexibility to support Australian industries, particularly in cases where no locally produced substitute goods are available. The explanatory statement for Tariff Concession Instrument No. 0940172, issued on 8 January 2010, highlights the process and criteria for TCO applications, including the requirement that no substitutable goods be produced in Australia. Melbourne Precast Concrete's application for a TCO on certain concrete shape moulding placement systems was accepted, resulting in a duty-free status for these goods, effective from 23 October 2009, the date the application was lodged. This legislative instrument aims to provide relief to importers without imposing new liabilities or disadvantaging existing rights holders.
Scope and Application
The Tariff Concession Instrument No. 0940172, as outlined under Part XVA of the Customs Act 1901, applies to applications for Tariff Concession Orders (TCOs) submitted to the Chief Executive Officer of Customs. These applications are intended to establish lower rates of customs duty for specified goods, provided they meet the core criteria stipulated by the Act. Specifically, the legislation applies to entities or individuals seeking to import goods that are not produced in Australia and do not have substitutable alternatives produced domestically. The geographic reach of this Act is national, impacting all imports subject to Australian customs regulations. Notably, the Act excludes certain goods from eligibility for a TCO, as specified in section 269SJ. The instrument may be extended or restricted through subordinate instruments, ensuring that the scope and application of the TCO scheme can be adapted as needed to meet changing economic and trade conditions.
Key Provisions
The Tariff Concession Instrument No. 0940172 under the Customs Act 1901 primarily provides for a concession in customs duty for certain concrete shape moulding placement systems (sections 269C, 269P(3)). If the Chief Executive Officer (CEO) of Customs is satisfied that the application for a Tariff Concession Order (TCO) meets the core criteria, as outlined in section 269C, then the CEO must issue a TCO (section 269P(3)). In this specific case, the CEO was satisfied that no substitutable goods were produced in Australia on the day the application was lodged, thus fulfilling the core criteria. As a result, the TCO No. 0940172 was issued on 8 January 2010, declaring that the goods in question are subject to a free rate of customs duty instead of the general 5% rate (section 269P(3)).
Entities such as Melbourne Precast Concrete, which applied for the TCO, must ensure their applications meet the core criteria specified in the Act (section 269C). The CEO has the obligation to review applications and determine whether they meet these criteria, particularly focusing on whether substitutable goods are produced in Australia (sections 269C, 269P(3)). Additionally, once a TCO application is accepted as valid, the CEO must publish a notice in the Gazette, inviting any interested parties to lodge submissions if they believe the TCO should not be made (subsection 269K(1)). In the case of TCO No. 0940172, no submissions were received in response to this notice.
The Act does not explicitly outline offences or penalties for the failure to comply with the requirements of a TCO. However, it is implied that any misuse or non-compliance with the terms of a TCO could lead to legal repercussions under the broader Customs Act 1901 or other related legislation. Specifically, any attempt to circumvent the provisions of a TCO could potentially be subject to the penalties outlined in the Customs Act, which may include fines and imprisonment. The exact penalties would depend on the nature and severity of the breach, as determined by the courts.