EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1108451
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.
Bluescope Steel applied for a TCO in respect of certain regenerative thermal oxidizer waste gas burner nozzles on 08 March 2011.
Instrument
TCO No 1108451 was made on 30 May 2011. It declares that those certain regenerative thermal oxidizer waste gas burner nozzles 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. 1108451 is taken to have come into force on 08 March 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, includes provisions under Part XVA that allow for the implementation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These TCOs provide a lower rate of customs duty on certain goods, subject to specific criteria outlined in the Act. The objective of the legislation is to support the importation of goods that are not produced in Australia and cannot be substituted by domestic products, thereby encouraging trade and providing economic benefits. The explanatory statement for Tariff Concession Instrument No. 1108451 details that this particular instrument was introduced in response to an application by Bluescope Steel for a concession on regenerative thermal oxidizer waste gas burner nozzles, which are not produced in Australia. The instrument was made on 30 May 2011, declaring that these specific nozzles would be subject to a zero rate of duty, effective from 08 March 2011, the date the application was lodged. The CEO was satisfied that the application met the core criteria, and no objections were received during the consultation period.
Scope and Application
The Tariff Concession Instrument No. 1108451 pertains to a specific application of the Customs Act 1901, governing the granting of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). This legislation applies to individuals or entities seeking to import certain goods for which a TCO can be applied, thus reducing or eliminating the customs duty on these goods. The act extends to national jurisdiction, affecting imports across Australia. Notably, the Act excludes goods specified in section 269SJ, which are ineligible for tariff concessions. This particular TCO, effective from 8 March 2011, applies to regenerative thermal oxidizer waste gas burner nozzles, reducing their duty from 5% to free, provided no substitutable goods are produced in Australia. The CEO's decision to grant the TCO is contingent on meeting core criteria outlined in the Act, including the absence of substitutable goods produced domestically. The TCO does not disadvantage existing rights or impose liabilities on individuals or entities except for the Commonwealth.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 1108451 under the Customs Act 1901 (the Act) include section 269C, which requires that a Tariff Concession Order (TCO) application meets core criteria if, on the date of application, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) mandates that if the Chief Executive Officer of Customs (the CEO) is satisfied that the application meets these core criteria, they must make a written order declaring the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. The instrument itself, TCO No. 1108451, declares that regenerative thermal oxidizer waste gas burner nozzles are goods to which item 50 of Schedule 4 applies, resulting in a duty-free status for these goods.
The obligations imposed on the parties by this Act include the requirement for applicants such as Bluescope Steel to ensure their applications are valid and meet the core criteria as outlined in section 269C. The CEO is obligated to assess the application's validity and whether it meets the core criteria, as stipulated in section 269P(3). If satisfied, the CEO must make a written order in accordance with the Act. Furthermore, as per subsection 269K(1), the CEO must publish a notice in the Gazette inviting submissions on the TCO application, although no submissions were received in this instance.
Under the Customs Act 1901, breaches of the requirements set forth in the Tariff Concession Instrument could lead to civil or criminal consequences. However, the explanatory statement does not specify particular offences or penalties for non-compliance with this TCO. Generally, breaches of the Customs Act may attract penalties such as fines, imprisonment, or both, depending on the severity and nature of the breach. The maximum penalties can vary widely, with serious offences potentially resulting in substantial fines and lengthy imprisonment terms. The specifics would depend on the particular sections of the Customs Act being contravened and the discretion of the court.