EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1036933
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.
Simplot Pty Ltd applied for a TCO in respect of certain bean and leaf vegetable harvesters on 11 August 2010.
Instrument
TCO No 1036933 was made on 01 November 2010. It declares that those certain bean and leaf vegetable harvesters 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. 1036933 is taken to have come into force on 11 August 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 Commonwealth Parliament, is designed to regulate the import and export of goods, including the imposition of customs duty. This Act establishes a framework under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs. The Tariff Concession Instrument No. 1036933 was introduced to address the specific needs of businesses that require certain goods to be imported tariff-free under certain conditions. This particular instrument, enacted in 2010, responds to an application by Simplot Pty Ltd for tariff concessions on certain bean and leaf vegetable harvesters, ensuring that these goods are exempt from the general customs duty rate of 5% and instead subject to a duty-free rate. The policy objective is to facilitate the importation of these goods by reducing financial barriers, thereby supporting industry needs and potentially lowering costs for businesses that rely on these harvesters.
Scope and Application
The Tariff Concession Instrument No. 1036933 under the Customs Act 1901 applies to the specific category of goods, namely certain bean and leaf vegetable harvesters, and is directed towards any individual or entity wishing to import these goods into Australia. The legislation facilitates the application of a zero rate of customs duty on these goods, as opposed to the general rate of 5%, provided that the Chief Executive Officer of Customs is satisfied that no substitutable goods are produced in Australia in the ordinary course of business. This act is part of the Commonwealth's legislative jurisdiction and applies across Australia. The act explicitly excludes any goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a Tariff Concession Order. Furthermore, the legislation extends its application through subordinate instruments, such as the Customs Tariff Act 1995, which provides the prescribed rates of duty.
The instrument was effective from 11 August 2010, the date on which the application for the tariff concession was lodged. The implementation of this concession does not adversely affect the rights of any person as they stood on the date of registration nor does it impose any liabilities on any person in respect of anything done or omitted before the registration date. This means that the rights of importers are beneficially affected, with importers of these goods potentially eligible for a refund of duty on goods imported since the date the TCO came into force. The instrument did not receive any submissions in response to the invitation for submissions following its publication in the Gazette.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 1036933 under the Customs Act 1901 require the Chief Executive Officer of Customs (CEO) to consider applications for Tariff Concession Orders (TCO) (section 269F). If the CEO is satisfied that the application meets the core criteria, specifically that no substitutable goods are produced in Australia (section 269C), they must make a written order declaring that the goods in question are subject to the specified tariff concessions (section 269P(3)). In this instance, the TCO No. 1036933 was issued for certain bean and leaf vegetable harvesters, granting them a duty-free status under item 50 of Schedule 4 to the Tariff, whereas the general rate of duty for these goods is 5% (section 269P(3)).
The Act imposes certain obligations on both the applicant and the CEO. For the applicant, the obligation lies in submitting a valid application to the CEO, ensuring that the goods in question meet the criteria of not having substitutable goods produced in Australia (section 269C). The CEO, on the other hand, must carefully assess the application against the core criteria and ensure that a notice is published in the Gazette inviting any submissions from interested parties (subsection 269K(1)). If no submissions are received, the CEO can proceed to make the TCO (subsection 269S(1)). In this case, Simplot Pty Ltd submitted the application for the bean and leaf vegetable harvesters, and the CEO, having found no submissions against the application, issued TCO No. 1036933.
Any breaches of the obligations set forth in the Customs Act 1901 can result in various consequences. While the explanatory statement does not explicitly detail offences, penalties, or consequences for breaches, the general framework of the Act suggests that failure to comply with tariff concession requirements could lead to legal ramifications. This could include civil penalties for non-compliance, as well as potential criminal charges for deliberate or fraudulent misrepresentation in the application process. The specific penalties would be in accordance with the broader provisions of the Customs Act 1901 and any relevant regulations, which could include fines or imprisonment depending on the severity of the breach.