EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0412358
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.
Fujifilm Australia Pty Ltd applied for a TCO in respect of certain photographic papers on 16 November 2004.
Instrument
TCO No 0412358 was made on 1 February 2005. It declares that those certain photographic papers 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 3%.
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. 0412358 is taken to have come into force on 16 November 2004.
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, establishes a framework within which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO). This legislative measure was introduced to address the need for reduced customs duty rates on specific goods, provided that they meet certain criteria, such as not being substitutable by goods produced in Australia. Fujifilm Australia Pty Ltd applied for a TCO for certain photographic papers, and following a review by the CEO, Tariff Concession Order No. 0412358 was issued on 1 February 2005. This order granted a tariff concession, reducing the duty on the specified photographic papers from 5% to 3%. The policy objective of this legislation is to facilitate trade by lowering the cost of imported goods under certain conditions, thereby promoting economic efficiency and competitiveness within the market.
Scope and Application
The Customs Act 1901, specifically under Part XVA, provides a framework for the application of Tariff Concession Orders (TCOs) which can be applied for by a person to reduce the customs duty on specified goods. This instrument applies to any person or entity seeking a reduction in customs duty on goods that are not produced in Australia and do not have a substitutable domestic equivalent. The scope of the Act extends to any goods subject to a TCO, but excludes those goods specified in section 269SJ, which cannot be subject to a TCO. The geographic reach of the Act is national, as it applies across Australia under the Commonwealth's legislative authority. The Act allows for the application of TCOs through subordinate instruments, which can further define the criteria and process for concession applications. The commencement of a TCO is deemed to be effective from the date the application was lodged, as per subsection 269S(1) of the Act. Notably, the TCO does not adversely affect any person's rights as they stood at the time of the application and does not impose any new liabilities on individuals or entities, except for the Commonwealth.
Key Provisions
The key provisions of the Tariff Concession Instrument No. 0412358 under the Customs Act 1901 (the Act) revolve around the establishment and application of Tariff Concession Orders (TCOs). Section 269F of the Act allows for an application to be made to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods, provided these goods are not specified in section 269SJ. The CEO must determine if the application meets the core criteria, which are outlined in section 269C and involve ensuring that no substitutable goods were produced in Australia on the day the application was lodged. Definitions for terms like 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269D, 269E, and 269P(3) respectively. If the CEO is satisfied that the application meets the criteria, they must issue a written order as per section 269P(3), declaring that the goods in question are subject to a specific item in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed by the Act on parties include the requirement for any person seeking a TCO to ensure that their application is valid and that the goods in question meet the core criteria as outlined in section 269C. The CEO must then publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made, as required by subsection 269K(1). Additionally, the Act stipulates that the TCO does not affect the rights of persons other than the Commonwealth as at the date of registration, ensuring that it does not disadvantage or impose liabilities on such persons in respect of anything done or omitted to be done before the date of registration.
Breach of the provisions outlined in the Customs Act 1901 can result in various civil and criminal consequences. However, the explanatory statement does not detail specific offences or penalties for non-compliance with the TCO. The Act provides for general enforcement mechanisms that could include fines or imprisonment for more serious breaches, although the exact penalties would need to be referenced in other sections of the Act or related legislation. It is important for all parties involved to ensure compliance with the Act to avoid any potential legal repercussions.