EXPLANATORY STATEMENT
Tariff Concession Instrument No.0412881
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.
Doellken-ASL Pty Ltd applied for a TCO in respect of certain acrylic edging on 1 December 2004.
Instrument
TCO No 0412881 was made on 11 February 2005. It declares that those certain acrylic edging 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 No0412881 is taken to have come into force on 1 December 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. 0412881, enacted in 2005, is an instrument under the Customs Act 1901 that aims to provide tariff concessions for certain goods. This instrument was introduced to address the need for a streamlined process to allow for reduced customs duty rates on specific goods, thereby encouraging trade and supporting industries that rely on imported materials. The instrument was enacted by the Parliament of Australia and is designed to benefit importers by reducing the duty rate on certain acrylic edging from 5% to 3%. This reduction is contingent on the condition that no substitutable goods are produced in Australia, as per the criteria outlined in the Customs Act 1901. The instrument came into force on the date the application was lodged, 1 December 2004, and does not impose any liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0412881, made under the Customs Act 1901, applies specifically to certain acrylic edging goods that were the subject of an application for a Tariff Concession Order (TCO) by Doellken-ASL Pty Ltd. The Act allows for the CEO of Customs to issue TCOs, which reduce the customs duty on specified goods, provided that no substitutable goods are produced in Australia in the ordinary course of business. The geographic reach of the Act is national, as it pertains to the Commonwealth of Australia. This particular TCO, which came into force on the date the application was lodged, 1 December 2004, reduces the duty rate for the specified acrylic edging from the general rate of 5% to 3%. The TCO does not impose any liabilities on any person and does not affect the rights of any person as at the date of registration, except to benefit the rights of importers who can apply for a refund of duty on goods imported since the commencement date of the TCO. There were no submissions received in response to the notice published in the Gazette inviting objections to the TCO.
Key Provisions
The Tariff Concession Instrument No. 0412881 pertains to the Customs Act 1901 and involves the establishment of a Tariff Concession Order (TCO) for specific goods. According to section 269F, an individual may apply to the Chief Executive Officer of Customs (CEO) for a TCO concerning certain goods. If the application does not pertain to goods listed in section 269SJ, which cannot be subject to a TCO, the CEO must then determine if the application satisfies the core criteria outlined in section 269C. Specifically, this involves ensuring that, on the date of the application, no substitutable goods were being produced in Australia in the ordinary course of business. Definitions for terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269D, 269E, and 269F respectively.
Entities and individuals subject to this legislation must ensure their applications for TCOs meet the specified criteria, particularly the absence of substitutable goods produced in Australia. This involves providing adequate information and evidence to the CEO to substantiate their claim. Moreover, the CEO is mandated by section 269K(1) to publish a notice in the Gazette inviting submissions from any person who may oppose the TCO. This step ensures transparency and allows for any objections to be aired before the TCO is issued. In this instance, Doellken-ASL Pty Ltd's application for a TCO regarding certain acrylic edging was processed, and the CEO was satisfied that no substitutable goods were being produced in Australia. Thus, the CEO issued TCO No. 0412881, effective from 1 December 2004, reducing the duty on these goods from 5% to 3%.
Failure to comply with the requirements of the Customs Act 1901 and the associated regulations can lead to various legal consequences. Under section 269M, if an individual or entity provides false or misleading information in their TCO application, they may be subject to penalties. Such penalties can include fines and, in severe cases, criminal charges. Additionally, any entity or individual found to be in breach of the Act may face legal action, including civil suits for damages. For instance, if a TCO is issued based on incorrect information and subsequently found to be invalid, the entity benefiting from the TCO may be required to repay any duties saved, along with potential interest and penalties. The specific penalties for breaches are outlined in the relevant sections of the Customs Act 1901 and related regulations, ensuring that all parties are aware of the potential consequences of non-compliance.