EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0947673
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.
Barrett Burston Malting Co Ltd applied for a TCO in respect of certain barley malt de culming machines on 07 December 2009.
Instrument
TCO No 0947673 was made on 26 February 2010. It declares that those certain barley malt de culming 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. 0947673 is taken to have come into force on 07 December 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. 0947673 under the Customs Act 1901 was enacted in 2010 to provide tariff concessions for certain barley malt de culming machines, addressing the gap in tariff rates for specific imported goods. The instrument was initiated by Barrett Burston Malting Co Ltd, which applied for a tariff concession order (TCO) on 7 December 2009. The Customs Act 1901 enables the Chief Executive Officer of Customs to make such orders if certain criteria are met, including that no substitutable goods were produced in Australia at the time of the application. The instrument was finalised on 26 February 2010, with the CEO satisfied that the application met these criteria, resulting in a TCO that effectively reduced the duty rate from 5% to free for the specified machinery. The instrument came into force on the date of the application, 7 December 2009, and ensures that the rights of importers are beneficially affected without imposing any new liabilities or disadvantaging any party.
Scope and Application
The Tariff Concession Instrument No. 0947673, established under the Customs Act 1901, pertains to the application and implementation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This Act applies to individuals or entities that seek a lower rate of customs duty on specific goods through the application for a TCO. The legislation's geographic and jurisdictional reach is national, applying across Australia in accordance with the Commonwealth's customs regulations. The application of the Act is contingent upon the criteria outlined in sections 269C and 269SJ of the Customs Act 1901, particularly regarding the production of substitutable goods in Australia. The instrument came into effect on 07 December 2009, the date the application was lodged, and it provides tariff concessions on certain barley malt de culming machines, exempting them from the general rate of duty of 5% and allowing them to be imported duty-free. This legislative instrument does not affect the rights of any person as at the date of registration and does not impose any new liabilities on individuals or entities.
Key Provisions
The key operative sections of the Tariff Concession Instrument No. 0947673 under the Customs Act 1901 include sections 269C, 269F, and 269P. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) in respect of certain goods. If the application meets the core criteria specified in section 269C, the CEO must make a written order declaring that the goods in question are subject to the concession. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, a TCO must be made. This particular TCO, No. 0947673, was made on 26 February 2010, and it applies to certain barley malt de culming machines, specifying that they are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, with a duty rate of free instead of the general rate of 5%.
The Act imposes several obligations and requirements on the parties involved. Firstly, any person wishing to apply for a TCO must ensure that their application is not in respect of goods specified in section 269SJ, which lists those goods that cannot be subject to a TCO. The application must also meet the core criteria, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. This is defined under section 269C, where 'substitutable goods' means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use to which the goods the subject of the application can be put. The CEO must then decide whether the application meets these criteria. Additionally, as per subsection 269K(1), the CEO is required to publish a notice in the Gazette inviting any person who believes there are reasons why the TCO should not be made to lodge a submission.
In terms of offences, penalties, or consequences for breach, the Act does not explicitly detail specific offences or penalties related to the application or issuance of TCOs. However, any breaches of the Customs Act 1901 or the Customs Regulations 1993 could potentially lead to civil or criminal penalties. For instance, fraudulent applications or misrepresentations in applications could be subject to penalties under the broader Customs Act framework, which could include fines and imprisonment. The specific maximum penalties would depend on the nature and severity of the breach. It is also important to note that the TCO itself does not impose any liabilities on any person other than the Commonwealth and does not affect the rights of a person as at the date of registration to disadvantage them or impose liabilities in respect of anything done or omitted before the date of registration.