EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1024804
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.
Avanti Wind Systems Pty Ltd applied for a TCO in respect of certain fall protective ladders on 03 June 2010.
Instrument
TCO No 1024804 was made on 30 August 2010. It declares that those certain fall protective ladders 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. 1024804 is taken to have come into force on 03 June 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. 1024804 was enacted in 2010 under the Customs Act 1901, aiming to address the issue of providing tariff concessions for specific goods that are not produced in Australia. This instrument was introduced to facilitate the reduction or elimination of customs duties for goods that do not have domestic alternatives, thereby encouraging the importation of such goods. Enacted by the Parliament of Australia, the underlying policy objective is to foster economic efficiency and consumer choice by ensuring that Australians have access to a broader range of competitively priced goods. This legislative measure allows the Chief Executive Officer of Customs to issue Tariff Concession Orders that grant reduced or no customs duty on specified goods, provided that no substitutable goods are produced in Australia. The process involves assessing applications against the core criteria established under the Act, ensuring that any tariff concessions granted are justified and do not disadvantage Australian producers.
Scope and Application
The Customs Act 1901, specifically under Part XVA, governs the process by which Tariff Concession Orders (TCO) are made by the Chief Executive Officer of Customs (CEO). This legislation applies to any person who can apply to the CEO for a TCO in respect of goods, provided those goods do not fall under the category specified in section 269SJ of the Act that are ineligible for tariff concessions. A TCO is applicable when the CEO determines that no substitutable goods are produced in Australia in the ordinary course of business on the date the application is lodged, as per section 269C. This concession results in a lower rate of customs duty for the specified goods, with the TCO coming into force on the date the application was lodged, as outlined in section 269S. The scope of the Act is national, covering all entities and individuals involved in the importation of goods across Australia. There are no reported exclusions or exemptions within the scope of this particular TCO, and the application does not impose any liabilities on any person. The effectiveness of this TCO is contingent upon the absence of substitutable goods produced in Australia, and the CEO's decision is final in determining the eligibility of goods for such concessions.
Key Provisions
The main operative sections of this legislation (F2010L02985) pertain to the granting of a Tariff Concession Order (TCO) under the Customs Act 1901 (the Act). Section 269F enables an application to be made to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods, provided they do not fall under the prohibited list in section 269SJ. Section 269C outlines the core criteria for a TCO, which requires that no substitutable goods were produced in Australia on the day the application was lodged. Once the CEO determines that the application meets the core criteria, a written TCO is issued under section 269P(3), specifying the applicable tariff item from Schedule 4 of the Customs Tariff Act 1995. In this instance, the TCO No. 1024804 declares that certain fall protective ladders are subject to item 50 of the Tariff, resulting in a duty rate of free instead of the general 5%.
The Act imposes specific obligations on the parties involved. For the applicant, it is necessary to ensure that the goods in question meet the core criteria as stipulated in section 269C. The CEO has the responsibility to evaluate the application, determine if the core criteria are satisfied, and issue a TCO if appropriate. Furthermore, under subsection 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. This notice must be published as soon as practicable after the application is accepted as valid. In the case of TCO No. 1024804, no submissions were received in response to the published notice.
There are no specific offences, penalties, or consequences mentioned in the legislation for breach of the Act in relation to TCOs. However, it is implied that failure to adhere to the stipulated procedures or providing false information in the TCO application could lead to legal consequences under the broader provisions of the Customs Act 1901 or other relevant laws. The primary focus of the legislation is on the process of granting tariff concessions and ensuring compliance with the specified criteria, rather than detailing specific penalties for non-compliance in this context.