EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1045489
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.
Helifix Australia applied for a TCO in respect of certain wall ties on 08 October 2010.
Instrument
TCO No 1045489 was made on 07 January 2011. It declares that those certain wall ties 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. 1045489 is taken to have come into force on 08 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 Tariff Concession Order No. 1045489 was introduced under the Customs Act 1901 to provide tariff concessions for certain wall ties, with Helifix Australia being the applicant. Enacted in 2011, this legislation aims to address the need for reduced customs duty rates on specific goods that are not produced domestically, thereby encouraging importation and potentially stimulating competition in the market. The instrument was enacted by the Chief Executive Officer of Customs following a determination that no substitutable goods were being produced in Australia at the time of the application. This decision was made in accordance with the core criteria set out in the Act, particularly sections 269C and 269D, ensuring that the tariff concession order aligns with the legislative framework designed to promote economic efficiency and consumer benefit. The policy objective is to facilitate the importation of goods that are not domestically produced, thus benefiting importers and potentially lowering costs for end-users.
Scope and Application
The Tariff Concession Instrument No. 1045489, made under section 269F of the Customs Act 1901, applies to goods specified in the instrument, namely certain wall ties, which are subject to a Tariff Concession Order (TCO). This order was made by the Chief Executive Officer of Customs (CEO) after Helifix Australia applied for the concession on 08 October 2010. The TCO applies to the goods specified in the instrument and is effective from the date the application was lodged, 08 October 2010. The legislation applies to any person or entity importing the specified wall ties into Australia and benefits those importers by granting a tariff concession, reducing the duty rate to free from the general rate of 5%. The CEO is required to publish a notice in the Gazette inviting any person who may have reasons to oppose the making of the TCO to lodge a submission, although in this case, no submissions were received. The Act ensures that the TCO does not disadvantage any person or impose liabilities on them in respect of anything done or omitted to be done before the date of registration.
Key Provisions
The Tariff Concession Instrument No. 1045489 under the Customs Act 1901 establishes a framework for tariff concessions on specific goods. This involves the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) when certain criteria are met. Section 269F of the Act allows an application for a TCO, which must not concern goods specified in section 269SJ. If the application is valid, the CEO must determine whether it meets the core criteria outlined in section 269C, which require that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If these criteria are met, a TCO is issued, as specified in section 269P(3).
The obligations under this legislation primarily rest with the CEO of Customs, who must evaluate applications and decide on the issuance of TCOs based on the criteria set out in section 269C. The CEO must also ensure that a notice is published in the Gazette as soon as practicable after accepting a TCO application, inviting any interested parties to lodge submissions if they believe the TCO should not be made, as outlined in section 269K(1). In the case of TCO No. 1045489, no submissions were received.
The act imposes specific consequences for breaches of its provisions. While the explanatory statement does not detail specific offences or penalties, it is clear that the TCO will not affect the rights of persons (other than the Commonwealth) as at the date of registration, ensuring that no disadvantage or liability is imposed on individuals or entities for actions taken before the TCO's effective date. Importers of the goods affected by the TCO, however, will have the right to apply for a refund of duty under the Customs (Tariff) Regulations 1993, specifically paragraph 126(1)(r).