EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1005323
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.
Heiniger Australia applied for a TCO in respect of certain shearing machine parts on 01 February 2010.
Instrument
TCO No 1005323 was made on 16 April 2010. It declares that those certain shearing machine 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. 1005323 is taken to have come into force on 01 February 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, provides a framework for the regulation of customs and excise duties, amongst other things. The Act was designed to address the need for a comprehensive legal structure to manage the importation and exportation of goods, ensuring compliance with relevant tariffs and duties. As an amendment to the Customs Act, Tariff Concession Instrument No. 1005323 was introduced to provide relief to businesses by allowing the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that lower the customs duty on certain goods. This was to address the gap where certain goods that are not produced in Australia could benefit from reduced tariff rates. The policy objective of this instrument is to ensure that Australian businesses can access necessary imported goods at a reduced cost, thereby encouraging trade and economic efficiency.
Scope and Application
The Tariff Concession Instrument No. 1005323 under the Customs Act 1901 applies specifically to the goods for which Tariff Concession Orders (TCO) are sought and granted. These TCOs, issued by the Chief Executive Officer of Customs, reduce the customs duty for certain goods, thereby benefiting the importers of such goods. The instrument applies to the person or entity that successfully applies for a TCO, provided the application complies with the core criteria outlined in the Act. The concession does not apply to goods specified in section 269SJ of the Customs Act 1901 and extends to the entire Commonwealth of Australia. Any exclusions or exemptions are explicitly defined within the Act itself, and no liabilities or disadvantages are imposed on any person other than the Commonwealth concerning actions taken prior to the TCO's registration date. The scope of the application may be further detailed or refined through subordinate instruments, although no such extensions or restrictions are noted in this particular instrument.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 1005323, which was made under the Customs Act 1901, include sections 269C, 269F, 269P, and 269S. Section 269F allows an individual to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of specific goods. Section 269C outlines the core criteria that the CEO must consider when deciding whether to grant the TCO, which primarily involves assessing whether substitutable goods are produced in Australia. Section 269P(3) mandates that if the CEO determines the application meets the core criteria, they must issue a written TCO, specifying the particular item in the Customs Tariff Act 1995 Schedule 4 that applies to the goods in question.
The obligations imposed by the Act on the parties involved are primarily on the CEO, who must carefully evaluate each TCO application to ensure that it complies with the core criteria set forth in section 269C. The CEO is also required to publish a notice in the Gazette inviting any interested parties to submit their views on the application. Once the CEO decides to issue a TCO, they must do so in writing and specify the applicable tariff concession. The legislation ensures that the rights of individuals, other than the Commonwealth, are not adversely affected by the TCO as of the date of its registration, and it does not impose any liabilities on anyone for actions taken before the TCO's effective date.
The Act does not explicitly state any offences, penalties, or consequences for breaching the provisions related to TCOs. However, any misuse or fraudulent activities related to the application or implementation of a TCO could potentially lead to legal repercussions under other sections of the Customs Act 1901 or related legislation. For instance, if a person were to knowingly provide false information in a TCO application, they might face charges under sections pertaining to fraud or misrepresentation, which could result in substantial fines and imprisonment. Although specific penalties for TCO-related breaches are not detailed in the explanatory statement, the overarching framework of the Customs Act 1901 provides a basis for addressing any non-compliance through existing legal provisions.