EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0946228
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.
Bradken Resources applied for a TCO in respect of certain sand mixers on 06 January 2009.
Instrument
TCO No 0946228 was made on 03 April 2009. It declares that those certain sand mixers 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. 0946228 is taken to have come into force on 06 January 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. 0946228, enacted in 2009, is a part of the Customs Act 1901 and is designed to address the need for tariff concessions for specific goods. This instrument was introduced to facilitate the application of lower rates of customs duty on certain goods, in this case, sand mixers, provided that these goods do not have substitutable equivalents produced in Australia. The Tariff Concession Orders (TCOs) are managed by the Chief Executive Officer of Customs, who assesses applications against the core criteria outlined in the Act, ensuring that the concession does not disadvantage Australian production. The policy objective of this instrument is to support the import of specific goods by reducing their duty rates, thus potentially lowering costs for businesses and consumers.
The enactment of this instrument by the Australian Parliament through the Customs Act 1901 aims to provide a streamlined process for granting tariff concessions, fostering trade efficiency and economic benefits. By declaring that certain sand mixers are subject to a free rate of duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, the legislation ensures that Bradken Resources and other importers can benefit from reduced customs duties. This legislative measure supports the importation of these goods, aligning with the broader objective of facilitating trade and economic activity in Australia.
Scope and Application
The Customs Act 1901, through its Part XVA, outlines a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO). This legislation applies to any person or entity seeking tariff concessions on imported goods, provided that the goods do not fall under the prohibited categories specified in section 269SJ. The CEO must ensure that no substitutable goods are produced in Australia in the ordinary course of business before granting a TCO, as stipulated by sections 269C and 269D. Geographic and jurisdictional reach of this Act is national, given its enactment under the Commonwealth. The TCOs extend their application based on the specified terms and conditions within the order itself, and these may be further defined through subordinate instruments. For instance, TCO No. 0946228 applies to certain sand mixers, which are now subject to a duty-free rate, as no equivalent goods were being produced in Australia at the time of the application. Importantly, this TCO does not impose any liabilities on individuals or entities, nor does it retroactively affect rights or obligations established prior to its issuance.
Key Provisions
The main operative sections of this legislation pertain to the creation and implementation of Tariff Concession Orders (TCOs) under the Customs Act 1901. Specifically, section 269F allows an individual or entity to apply to the Chief Executive Officer of Customs (CEO) for a TCO in relation to certain goods. Section 269C stipulates that the CEO must assess whether the application meets the core criteria, which includes determining if no substitutable goods were produced in Australia on the date the application was lodged (section 269S). If the CEO is satisfied that the application meets these criteria, they are required under section 269P(3) to issue a written order (a TCO) that specifies the applicable customs duty rate, as outlined in Schedule 4 to the Customs Tariff Act 1995.
In terms of obligations, the CEO has the duty to publish a notice in the Gazette, inviting submissions from any interested parties who may oppose the making of a TCO (subsection 269K(1)). In this instance, the CEO did not receive any submissions against the TCO application. Furthermore, once a TCO is issued, it is deemed to have come into effect on the date the application was lodged (subsection 269S(1)). The TCO does not affect any existing rights of persons, except the Commonwealth, nor does it impose any new liabilities on any person.
Offences and penalties for breaches of the Customs Act 1901 are not explicitly detailed within the text of this legislation. However, it is reasonable to infer that any breaches of the Act could result in civil or criminal consequences, as is common with statutory instruments of this nature. The specific penalties for breaches would depend on the nature of the breach and would likely be outlined in other sections of the Customs Act 1901 or related legislation. Given the nature of the TCO, failure to comply with its terms could potentially lead to financial penalties or other enforcement actions by the CEO.