EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0412872
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.
Technicolor Pty Ltd applied for a TCO in respect of certain video cassette cases on 29 November 2004.
Instrument
TCO No 0412872 was made on 4 February 2005. It declares that those certain video cassette cases 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. 0412872 is taken to have come into force on 29 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 Tariff Concession Instrument No. 0412872, enacted in 2005, is a measure under the Customs Act 1901, designed to address the need for tariff concessions on specific imported goods. This legislation was introduced to provide a mechanism whereby the Chief Executive Officer of Customs can grant reduced customs duty rates on certain goods, provided they meet the specified core criteria and are not substitutable by goods produced domestically. The policy objective is to facilitate the import of goods that are not locally manufactured, thereby supporting trade and potentially lowering costs for importers. The instrument was enacted by the Australian Government and aims to ensure that importers are not disadvantaged by retroactive changes while allowing for the application of tariff concessions from the date of the initial application.
Scope and Application
The Tariff Concession Instrument No. 0412872 applies to certain video cassette cases, as specified in the Customs Act 1901. This Act allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that provide for lower rates of customs duty on specified goods. The application of this Instrument is restricted to cases where the goods in question are not produced in Australia in the ordinary course of business and there are no substitutable goods available domestically. The geographic reach of this legislation is national, as it pertains to the customs regime operating across Australia. The application process requires public notification and consultation, although in this instance, no submissions were received. The commencement date for this particular TCO is the date the application was lodged, 29 November 2004, and it does not retroactively affect any pre-existing rights or impose new liabilities on individuals or entities. Instead, it primarily benefits importers by potentially allowing them to seek refunds on duties paid on the specified goods since the effective date of the TCO.
Key Provisions
The Tariff Concession Instrument No. 0412872, under the Customs Act 1901, establishes a concession on customs duty for specific video cassette cases. As outlined in section 269F, an applicant may request a Tariff Concession Order (TCO) from the Chief Executive Officer of Customs (CEO). The CEO must assess whether the application complies with the core criteria specified in section 269C, which requires that, on the date of application, no substitutable goods were produced in Australia in the ordinary course of business. If these criteria are met, the CEO is mandated to issue a TCO as per section 269P(3), as was the case with the video cassette cases that received a 3% duty rate instead of the general 5% rate.
The obligations under this Act primarily rest on the applicant and the CEO. The applicant must ensure that their request is valid and meets the specified criteria, while the CEO is responsible for assessing the application and making the TCO if the criteria are met. The CEO must also publish a notice in the Gazette, inviting any interested parties to submit objections or submissions, as stipulated in section 269K(1). In this case, no objections were received.
The Act also outlines the consequences for non-compliance or breach of its provisions. While specific offences and penalties are not detailed in this explanatory statement, the general legal framework suggests that breaches could lead to civil or criminal penalties, depending on the nature and severity of the breach. However, in this particular instance, no submissions or objections were lodged, and the TCO was issued without incident. It is important to note that the TCO does not affect the rights of any person except the Commonwealth, and it does not impose any liabilities on persons other than the Commonwealth, ensuring that no party is disadvantaged by the TCO.