EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1000395
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.
Tieman Industries applied for a TCO in respect of certain hydraulic lift platforms on 04 January 2010.
Instrument
TCO No 1000395 was made on 26 March 2010. It declares that those certain hydraulic lift platforms 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. 1000395 is taken to have come into force on 04 January 2010.
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, establishes a framework for the imposition of customs duties on imported goods. In 2010, Tariff Concession Instrument No. 1000395 was introduced to address the specific needs of businesses seeking relief from certain customs duties. This instrument was created to provide a concession under Part XVA of the Customs Act 1901, allowing for lower rates of customs duty on particular goods when no substitutable goods are produced in Australia. The policy objective is to support Australian businesses by reducing the cost of importing specific goods, thus enhancing their competitiveness without imposing any liabilities on individuals or entities prior to the registration of the Tariff Concession Order. The instrument came into effect on the date the application was lodged, 4 January 2010, and provides benefits to importers who can apply for duty refunds on goods imported since that date.
Scope and Application
The Customs Act 1901, as supplemented by Tariff Concession Order No. 1000395, applies to the import of specific hydraulic lift platforms, providing a concession by way of a reduced rate of customs duty for these goods. The Act governs the process through which the Chief Executive Officer of Customs may grant a Tariff Concession Order (TCO) to an applicant if certain criteria are met, such as the absence of substitutable goods produced in Australia at the time of the application. This concession is applicable on a Commonwealth level, impacting entities involved in the importation of these goods by lowering the duty rate from 5% to free. The TCO applies retroactively to the date the application was lodged, in this case, 4 January 2010, and does not affect the rights of any person other than the Commonwealth nor impose any liabilities on individuals or entities except the Commonwealth. The TCO does not exclude any specific categories of goods or entities from its application, provided the core criteria specified in the Act are satisfied. The scope of the Act may be extended or clarified through subordinate instruments, which can provide additional details on the application process and the specific conditions under which the TCO can be granted.
Key Provisions
The Tariff Concession Instrument No. 1000395, issued under the Customs Act 1901, pertains to the application of a Tariff Concession Order (TCO) for certain hydraulic lift platforms. This instrument was made under section 269P(3) of the Customs Act 1901, which requires the Chief Executive Officer (CEO) of Customs to issue a written order if satisfied that the application for a TCO meets the core criteria. The instrument specifies that the hydraulic lift platforms in question are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, with the general rate of duty on these goods being 5% and the concessional rate under this TCO being free.
The obligations under the Customs Act 1901 for this TCO involve several steps. Firstly, any person can apply to the CEO for a TCO in respect of goods, as per section 269F. If the CEO is satisfied that the application is valid and not in respect of goods specified in section 269SJ, they must determine whether the application meets the core criteria outlined in section 269C. This involves verifying that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business, as defined by sections 269D and 269E. Once these criteria are met, the CEO must issue the TCO.
The Customs Act 1901 imposes several requirements and obligations on the parties involved. For instance, the CEO must 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, as per subsection 269K(1). In this case, no submissions were received. Additionally, the CEO must ensure that the rights of persons, other than the Commonwealth, are not adversely affected by the TCO as per subsection 269S(1). This TCO benefits importers by allowing them to apply for a refund of duty on goods imported since the TCO's effective date, under paragraph 126(1)(r) of the Regulations.
Breaching the provisions of the Customs Act 1901 can result in various civil or criminal consequences. Although the explanatory statement does not detail specific offences, penalties, or maximum penalties, it is understood that any non-compliance with the requirements set out in the Act could lead to legal action. This could include fines or other civil penalties for incorrect duty payments, and potentially criminal penalties for more severe breaches, such as fraud or smuggling. The exact nature and extent of penalties would depend on the specific breach and the provisions of the Customs Act 1901 and related legislation.