EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1136081
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.
Safetech Pty Ltd applied for a TCO in respect of certain motor vehicle scissor lift support platform assemblies on 28 October 2011.
Instrument
TCO No 1136081 was made on 16 January 2012. It declares that those certain motor vehicle scissor lift support platform assemblies 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. 1136081 is taken to have come into force on 28 October 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 was enacted to provide a framework for the regulation of customs and excise duties in Australia. The Act allows for the establishment of Tariff Concession Orders (TCOs) through which the Chief Executive Officer of Customs (CEO) can reduce customs duty rates on specific goods. The introduction of Tariff Concession Instrument No. 1136081 in 2012 under the Customs Act 1901 addressed the need to provide relief for certain imported goods, specifically motor vehicle scissor lift support platform assemblies, by offering a tariff concession that lowered the customs duty rate from 5% to free. This instrument was enacted by the CEO in accordance with the legislative provisions set out in the Customs Act 1901, following a valid application by Safetech Pty Ltd and without any objections from the public during the consultation period. The policy objective of this measure was to encourage the import of these specific goods by reducing their cost, thereby benefiting importers and potentially stimulating market activity.
Scope and Application
The Tariff Concession Instrument No. 1136081 under the Customs Act 1901 applies to specific motor vehicle scissor lift support platform assemblies and is aimed at reducing the customs duty on these goods. This instrument was created following an application by Safetech Pty Ltd, and it applies to any entity importing these assemblies into Australia. The instrument specifies that the duty rate for these goods is reduced from 5% to free, provided the application criteria set out in the Act are met. The Act's application is national in scope, operating under the Commonwealth's jurisdiction. The instrument does not affect any pre-existing rights of persons other than the Commonwealth and does not impose any liabilities on such persons. Additionally, the instrument does not apply to goods specified in section 269SJ of the Customs Act 1901, which are those goods that cannot be subject to a Tariff Concession Order. The Act allows for further extension or restriction of application through subordinate instruments, which may introduce additional criteria or specific conditions for the concession.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, 269K, 269P, and 269S of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO), while section 269C sets out the core criteria that the CEO must satisfy before making a TCO. If the CEO is satisfied that the application meets the core criteria, section 269P(3) mandates that the CEO must issue a written TCO. The TCO will apply to the goods specified in the application, as stated in section 269S(1). Section 269K requires the CEO to publish a notice in the Gazette inviting any interested parties to lodge submissions against the TCO application.
The obligations and requirements imposed by this Act on the parties it governs are primarily centred around the application and processing of TCOs. Applicants, such as Safetech Pty Ltd, must ensure that their applications meet the core criteria outlined in section 269C. The CEO must review the application and determine whether it satisfies these criteria, and if so, issue a TCO as required by section 269P(3). Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties, as mandated by section 269K. The CEO is also required to consider any submissions received and decide whether to proceed with the TCO.
Breaching the requirements of this Act can result in various consequences. While specific offences and penalties are not outlined in the text, non-compliance with the Act's provisions may lead to legal challenges or disputes. The Act does not impose specific penalties for breaches; however, any legal consequences would likely stem from the breach of the underlying terms of the TCO or other relevant legislation. For example, if an entity were to import goods without adhering to the terms of a TCO, they could face penalties under the Customs Act 1901 or other related legislation. In this case, the maximum penalties would depend on the nature and severity of the breach.