EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0944795
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.
Veolia Environmental Services (Australia) Pty Ltd applied for a TCO in respect of certain industrial incinerator parts on 25 November 2009.
Instrument
TCO No 0944795 was made on 26 February 2010. It declares that those certain industrial incinerator parts 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. 0944795 is taken to have come into force on 25 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. 0944795, enacted in 2010, is an amendment to the Customs Act 1901, designed to address the need for tariff concessions on specific imported goods. This legislative instrument was introduced by the Parliament of Australia to streamline the process of granting tariff concessions, ensuring that certain industrial goods could be imported without incurring high customs duties. The Customs Act 1901 establishes a framework for the Chief Executive Officer of Customs to assess and approve applications for tariff concessions, ensuring that such concessions are granted only when specific criteria are met, such as the absence of substitutable goods produced domestically. This process aims to support Australian industries by reducing the cost of importing critical industrial components, thereby promoting economic efficiency and competitiveness.
Scope and Application
The Customs Act 1901 applies to the regulation of goods entering and exiting Australia, with a specific focus on the application of customs duties. Part XVA of the Act governs the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs, which can provide lower rates of customs duty on certain goods. These orders apply to goods that are not produced in Australia in the ordinary course of business and for which no substitutable goods are available domestically. The Act also specifies that certain goods, as outlined in section 269SJ, are ineligible for TCOs. The geographic scope of the Act is national, affecting all imports and exports across Australia. The application of TCOs can be extended or modified through subordinate instruments, although the primary legislation itself delineates the core criteria for such concessions. The Act ensures that the issuance of TCOs does not retroactively affect the rights of any person, including imposing liabilities for actions taken prior to the issuance of the order.
Key Provisions
The key provisions of this legislation (F2010L01445) concern the process and requirements for Tariff Concession Orders (TCOs) under the Customs Act 1901, specifically focusing on the concession for industrial incinerator parts. Section 269F outlines the application process, whereby an individual or entity may apply to the Chief Executive Officer of Customs (CEO) for a TCO for certain goods. For the CEO to consider the application, it must not be for goods specified in section 269SJ, which lists items ineligible for a TCO. The CEO must then evaluate whether the application meets the core criteria set out in section 269C, which require that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. These terms are further defined in sections 269D, 269E, and 269P(3). If the CEO is satisfied that the application meets these criteria, a written TCO is issued, as seen in the case of TCO No. 0944795 for industrial incinerator parts.
The Act imposes certain obligations on the parties involved. According to subsection 269K(1), the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid. This notice includes an invitation for any interested parties to lodge submissions if they believe there are reasons why the TCO should not be made. The CEO's duty to consult ensures transparency and allows for public input, though in this instance, no submissions were received. Additionally, under subsection 269S(1), the TCO is deemed to have come into force on the day the application was lodged, which in this case was 25 November 2009. The TCO does not retroactively affect the rights of any person, ensuring that no one is disadvantaged or imposed with new liabilities for actions taken before the TCO's effective date.
In terms of potential consequences, the Act does not explicitly outline offences, penalties, or civil/criminal consequences for breaches related to the issuance of TCOs. However, it is implied that any misuse or fraudulent application could lead to legal repercussions under the broader Customs Act 1901. For instance, providing false information in an application could be considered an offence under section 239 of the Act, which generally penalises false statements or misleading information provided to the CEO. The penalties for such offences can include fines and imprisonment, as stipulated by the relevant sections of the Act and the Customs Regulations 1993. The specifics of these penalties would depend on the nature and severity of the breach, but they underscore the seriousness with which the Act treats compliance and integrity in the TCO process.