EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1045333
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.
Macwil Roxtec Pty Ltd applied for a TCO in respect of certain transit assembly frames and or stay plates on 07 October 2010.
Instrument
TCO No 1045333 was made on 10 January 2011. It declares that those certain transit assembly frames and or stay plates 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. 1045333 is taken to have come into force on 07 October 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 Parliament of Australia, provides a framework for the regulation of customs duties, including the ability for the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) which can lower the rate of duty on certain goods. The Customs Act 1901 (F2011L00174) was introduced to address the need for a streamlined process by which businesses can apply for tariff concessions on specific goods. The policy objective of this legislation is to facilitate trade by reducing the cost of imported goods, thereby encouraging economic growth and enhancing competitiveness without disadvantaging existing rights or imposing new liabilities on any party. The instrument in question, Tariff Concession Instrument No. 1045333, was made on 10 January 2011, and it effectively grants a tariff concession on certain transit assembly frames and stay plates by Macwil Roxtec Pty Ltd, reducing the duty rate from 5% to free, and it came into force on the date the application was lodged, 7 October 2010.
Scope and Application
The Tariff Concession Instrument No. 1045333 under the Customs Act 1901 applies specifically to certain transit assembly frames and stay plates, as identified in the application by Macwil Roxtec Pty Ltd. This Instrument, effective from the date of the application on 7 October 2010, provides a concessional rate of customs duty for these specified goods. The application of this Instrument is contingent upon the determination by the Chief Executive Officer of Customs that no substitutable goods are produced in Australia, thereby satisfying the core criteria stipulated under section 269C of the Act. This Instrument benefits importers by allowing them to claim a refund of duty on the goods imported since the date of the Instrument's effective application, without imposing any liabilities on any party, as outlined under the Customs Act 1901 and the Customs Tariff Act 1995.
Geographically, the application of this Instrument is governed by the overarching framework of the Customs Act 1901, which operates across the Commonwealth of Australia, including its states and territories. The Instrument does not alter the pre-existing rights of any person except the Commonwealth and does not impose any liabilities on any party prior to its registration. It is important to note that the Instrument extends its application through subordinate instruments, aligning with the Customs Tariff Act 1995 to specify the duty rates applicable to the goods in question.
Key Provisions
The key provisions of the Tariff Concession Order No. 1045333 under the Customs Act 1901 (the Act) are outlined in sections 269C, 269P, and 269S. Section 269C (3) requires that a Tariff Concession Order (TCO) application meets the core criteria, specifically that no substitutable goods were produced in Australia on the day the application was lodged. Section 269P (3) mandates that if these criteria are met, the Chief Executive Officer of Customs (CEO) must make a written TCO. Section 269S provides the commencement date for the TCO, which is the day the application was lodged.
The obligations imposed on parties by this Act primarily focus on the application and assessment process for TCOs. The CEO must ensure that TCO applications meet the core criteria and, if so, issue a written TCO. Macwil Roxtec Pty Ltd, as the applicant in this case, must provide sufficient information and evidence to satisfy the CEO that no substitutable goods were produced in Australia. The CEO is also required to publish a notice in the Gazette inviting submissions on the proposed TCO, although no submissions were received in this instance.
Under the Customs Act 1901, there are potential civil and criminal consequences for breaches related to the TCO process. However, the Explanatory Statement does not detail specific offences or penalties in relation to TCO applications. Generally, breaches of the Customs Act could result in penalties, including fines and imprisonment, depending on the nature and severity of the breach. The maximum penalties for offences under the Customs Act can vary widely, often correlating with the level of intent and the financial impact of the breach. For instance, knowingly making a false statement could lead to penalties such as fines up to $22,200 for individuals and $111,000 for corporations, along with potential imprisonment terms.
In summary, TCO No. 1045333, under sections 269C, 269P, and 269S of the Customs Act 1901, establishes a concessionary customs duty rate for certain transit assembly frames and stay plates. It outlines the obligations of the CEO to assess and issue TCOs based on core criteria and the application process, while ensuring transparency through Gazette notifications. The legal framework also implies potential civil and criminal consequences for non-compliance, though specific penalties are not detailed in this Explanatory Statement.