EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1106939
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.
Visy Industries Australia Pty Ltd applied for a TCO in respect of certain solid waste fuel processing plant silo, slewing screw reclaimers on 22 February 2011.
Instrument
TCO No 1106939 was made on 23 May 2011. It declares that those certain solid waste fuel processing plant silo, slewing screw reclaimers 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. 1106939 is taken to have come into force on 22 February 2011.
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, and includes provisions for Tariff Concession Orders (TCOs) that allow for reduced customs duty rates on specified goods. This Act aims to facilitate trade by offering tariff concessions to importers of goods that are not produced domestically or are not suitable substitutes for the imported goods. The explanatory statement for Tariff Concession Instrument No. 1106939 clarifies the process by which the Chief Executive Officer of Customs evaluates applications for TCOs, ensuring that the concession is granted only if no substitutable goods are produced in Australia. This legislative instrument was introduced to address the need for a streamlined and transparent process for tariff concessions, thereby supporting the policy objective of promoting efficient and fair international trade practices.
Scope and Application
The Tariff Concession Instrument No. 1106939 applies to the importation of certain solid waste fuel processing plant silos, specifically slewing screw reclaimers, under the Customs Act 1901. This legislation allows for a concession on customs duty for these specific goods, provided that they meet the criteria set out in the Act, such as the absence of substitutable goods produced in Australia at the time of application. The application of this tariff concession is determined by the Chief Executive Officer of Customs, who must ensure that the application complies with the requirements stipulated in section 269F of the Act. The geographic reach of this legislation is national, as it pertains to customs duties applicable across Australia. Notably, the Act does not impose any liabilities on persons other than the Commonwealth, and it does not affect the rights of any person in a manner that would disadvantage them or impose liabilities for actions taken prior to the issuance of the Tariff Concession Order. This instrument extends the application of the Customs Act by providing a specific concession on certain imported goods, thereby offering relief to importers of these particular items.
Key Provisions
The Tariff Concession Instrument No. 1106939, made under section 269F of the Customs Act 1901, outlines the conditions under which the Chief Executive Officer (CEO) of Customs can grant a Tariff Concession Order (TCO). This instrument, effective from 22 February 2011, specifies that certain solid waste fuel processing plant silos and slewing screw reclaimers are exempt from the general rate of customs duty, which is 5%, and instead are subject to a rate of duty of free (section 269P(3)). The CEO must consider whether the application for a TCO meets the core criteria set out in section 269C of the Act, specifically whether no substitutable goods were produced in Australia on the day the application was lodged. If these criteria are met, a TCO must be issued, as was the case with TCO No. 1106939.
The Customs Act 1901 imposes specific obligations on the CEO and the applicants for TCOs. The CEO must ensure that any application for a TCO is not in respect of goods specified in section 269SJ, which are ineligible for TCOs. The CEO must also ensure that the application meets the core criteria and, if satisfied, make a written order granting the concession. The applicant must provide sufficient information to demonstrate that no substitutable goods are produced in Australia, as per section 269C of the Act. Additionally, under subsection 269K(1), the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections to the TCO, although in this case, no submissions were received.
Failure to comply with the requirements of the Customs Act 1901 or the terms of a TCO can lead to various legal consequences. The Act does not specify particular offences or penalties for non-compliance with TCOs, but general provisions of the Customs Act 1901, including section 200 and section 203, provide for criminal penalties for breaches related to customs duty, which can include fines and imprisonment. The specific penalties would depend on the nature and severity of the breach. It is also worth noting that the TCO does not affect the rights of any person as at the date of registration to the detriment of that person or impose any liabilities on any person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration.