EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0943499
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.
Mascot Engineering applied for a TCO in respect of certain glasss fibre reinforced cement mixing plant on 18 November 2009.
Instrument
TCO No 0943499 was made on 05 February 2010. It declares that those certain glasss fibre reinforced cement mixing plant 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. 0943499 is taken to have come into force on 18 November 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. 0943499 was enacted in 2010 under the Customs Act 1901 to provide a tariff concession for certain glass fibre reinforced cement mixing plant imported by Mascot Engineering. This instrument was created to address the need for reduced customs duties on specific goods that were not produced in Australia and for which no substitutable goods were available. The instrument was issued by the Chief Executive Officer of Customs, following an application by Mascot Engineering on 18 November 2009 and subsequent satisfaction that the application met the core criteria as outlined in the Act. The policy objective was to facilitate the import of these goods without incurring the standard customs duty, thereby encouraging their availability in the Australian market and potentially benefiting the industry reliant on these products. The instrument came into effect on the date the application was lodged, 18 November 2009, and it ensures that no pre-existing rights or liabilities of persons other than the Commonwealth are adversely affected.
Scope and Application
The Tariff Concession Instrument No. 0943499 under the Customs Act 1901 applies specifically to entities or individuals seeking tariff concessions on certain glass fibre reinforced cement mixing plant. The application of this legislation is confined to those who apply for a Tariff Concession Order (TCO) as stipulated under section 269F of the Act, provided the goods in question are not excluded as per section 269SJ. The Chief Executive Officer of Customs is mandated to assess whether the application meets the core criteria outlined in sections 269C, 269D, and 269E of the Act, particularly ensuring that no substitutable goods are produced in Australia in the ordinary course of business. This TCO applies nationally across Australia, administered by the Commonwealth, and it comes into force on the date the application was lodged, as per subsection 269S(1) of the Act. The TCO does not adversely affect the rights of any person except the Commonwealth and does not impose any liabilities on any person other than the Commonwealth, including those of importers who may benefit from a refund of duty. The Act extends its application through subordinate instruments, specifically under the Customs Tariff Act 1995, which details the specific rates and conditions of the concessions.
Key Provisions
The Customs Act 1901 (the Act) provides a framework for the Chief Executive Officer of Customs (the CEO) to grant Tariff Concession Orders (TCOs) under section 269F, allowing for a lower rate of customs duty on specified goods. When a person applies for a TCO in respect of certain goods, the CEO assesses whether the application meets the core criteria outlined in section 269C of the Act. These criteria require that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. The definitions of "goods produced in Australia", "ordinary course of business", and "substitutable goods" are provided in sections 269D, 269E, and 269F respectively. If the CEO is satisfied that the application meets these criteria, they must make a written order declaring that the goods in question are subject to a prescribed item in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed by the Act on the CEO include ensuring that any TCO application is assessed against the core criteria. This involves verifying that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business. If the CEO is satisfied with the application, they must publish a notice in the Gazette inviting submissions from any person who may have an interest in opposing the TCO. In this instance, no submissions were received, which may have expedited the decision-making process. Once a TCO is made, it is effective from the date the application was lodged, and it does not affect any pre-existing rights or liabilities, except to potentially allow for duty refunds as per paragraph 126(1)(r) of the Regulations.
In terms of potential breaches of the Act, there are no specific criminal or civil penalties outlined within the provided text. However, any misuse of the TCO process, such as submitting false information in an application, could lead to legal consequences under other provisions of the Customs Act 1901 or related legislation. For instance, knowingly making a false statement to the CEO could result in fines or imprisonment under section 283 of the Customs Act, which deals with offences related to providing false information. The penalties for such offences can vary, but typically include fines up to a significant amount and/or imprisonment for several years, depending on the severity of the offence.