EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1002051
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.
Pall Australia applied for a TCO in respect of certain wine and or wine lees filtration modules on 12 January 2010.
Instrument
TCO No 1002051 was made on 09 April 2010. It declares that those certain wine and or wine lees filtration modules 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. 1002051 is taken to have come into force on 12 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 Tariff Concession Instrument No. 1002051 was enacted in 2010 under the Customs Act 1901 to provide a concession on the customs duty payable on certain wine and wine lees filtration modules. This instrument was introduced to address the issue of ensuring that Australian businesses have access to essential goods without incurring prohibitive tariffs, thus supporting the growth of industries reliant on these imports. The instrument was made by the Chief Executive Officer of Customs following an application by Pall Australia and is based on the core criteria that no substitutable goods were produced in Australia at the time of the application. The primary policy objective is to facilitate the importation of these goods at a reduced duty rate, thereby promoting economic efficiency and competitiveness within the relevant sectors.
The instrument was subject to a consultation process, which involved publishing a notice in the Gazette inviting any objections to the concession. However, no submissions were received. The Tariff Concession Order came into force on the date the application was lodged, 12 January 2010, and it ensures that importers of the specified goods can apply for a refund of duty from that date. Importantly, the TCO does not disadvantage any person or impose new liabilities, aligning with the policy goal of providing relief without retrospective effect or burden on existing stakeholders.
Scope and Application
The Customs Act 1901, specifically under Part XVA, facilitates the creation of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs (CEO). This Act applies to any person or entity that seeks a concession on customs duty for goods imported into Australia. The Act’s geographic reach is national, as it is a Commonwealth Act. The process for applying for a TCO involves meeting core criteria, including ensuring that no substitutable goods are produced in Australia. The application must not pertain to goods specified in section 269SJ of the Act, which outlines goods that are ineligible for a TCO. The scope of the Act is further refined through the Customs Tariff Act 1995, which specifies the tariff items and duties. The TCO No. 1002051, issued on 9 April 2010, exemplifies this process by granting tariff concessions on certain wine and wine lees filtration modules, reducing their duty rate from 5% to free. The Act mandates the CEO to publish notices in the Gazette inviting submissions from the public regarding the TCO application; however, in this instance, no submissions were received. The TCO does not affect the rights of any person as at the date of registration, nor does it impose liabilities on any person.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 1002051, which was made under section 269F of the Customs Act 1901, declare that certain wine and or wine lees filtration modules are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (Section 1). Specifically, these goods are now subject to item 50 of Schedule 4, resulting in a duty-free status for these goods (Section 1). This means that the general rate of duty on these goods, which was 5%, is no longer applicable (Section 1).
The Customs Act 1901 imposes several obligations on the parties involved. For the Chief Executive Officer of Customs (CEO), the primary obligation is to assess whether an application for a Tariff Concession Order (TCO) meets the core criteria specified in section 269C of the Act (Section 2). The CEO must also ensure that the goods in question are not specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO (Section 2). Additionally, the CEO is required to publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made (Section 2).
Failure to comply with the requirements of the Customs Act 1901 can result in civil or criminal consequences. However, the Explanatory Statement does not detail specific offences or penalties for non-compliance in this context (Section 3). It is important to note that the TCO does not affect the rights of any person other than the Commonwealth as at the date of registration, nor does it impose any liabilities on any person (Section 3).
The Tariff Concession Order No. 1002051 came into force on 12 January 2010, the date on which the application for the TCO was lodged (Section 4). This means that any goods imported on or after this date can benefit from the duty-free status granted by the TCO (Section 4). Importers can apply for a refund of duty on goods imported since the TCO came into force under paragraph 126(1)(r) of the Regulations (Section 4).
In summary, the Tariff Concession Instrument No. 1002051 reduces the duty on certain wine and or wine lees filtration modules to zero by declaring these goods subject to a specific item in the Customs Tariff Act 1995 (Section 5). The CEO must ensure the application meets core criteria and publish notices inviting submissions, while the TCO itself does not impose any new liabilities and took effect from 12 January 2010 (Section 5).