EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0413340
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.
FMC Technologies Aust Ltd applied for a TCO in respect of certain flat food freezers on 6 December 2004.
Instrument
TCO No 0413340 was made on 11 February 2005. It declares that those certain flat food freezers 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. 0413340 is taken to have come into force on 6 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 Customs Act 1901, enacted by the Australian Parliament, establishes a framework through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislation was introduced to address the issue of ensuring that imported goods, which are not produced domestically, receive a lower rate of customs duty. This mechanism supports industries by making imported goods more competitively priced relative to their domestically produced counterparts. TCOs are intended to benefit the economy by facilitating the importation of goods that do not have local substitutes, thus enhancing market competition and consumer choice. The Tariff Concession Instrument No. 0413340, made on 11 February 2005, exemplifies this process, providing a reduced duty rate for certain flat food freezers, which aligns with the policy objective of fostering a more efficient and competitive marketplace.
Scope and Application
The Tariff Concession Instrument No. 0413340 applies to entities or individuals seeking a reduction in customs duty on certain flat food freezers. This legislation operates under the Customs Act 1901 and specifically within Part XVA, which facilitates the establishment of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The primary objective of this instrument is to provide a lower customs duty rate for goods that meet the specified criteria, in this case, certain flat food freezers. The geographic scope of this legislation is national, as it pertains to the application and enforcement of customs duties across Australia. Any entity or individual importing these specified goods can benefit from this concession, provided they adhere to the conditions set out in the Customs Act 1901 and the associated regulations. There are no stated exclusions or exemptions in this specific instrument, but the general criteria for TCO eligibility exclude goods that are already produced in Australia in the ordinary course of business. The application of this Act can be extended or restricted through subordinate instruments, such as regulations, which provide further detail on the administrative processes and eligibility criteria.
Key Provisions
The Tariff Concession Instrument No. 0413340, under the Customs Act 1901, establishes a tariff concession order (TCO) for certain flat food freezers. As per section 269C, a TCO application is considered valid if, on the date of application, no goods that can replace the specified items are produced in Australia. Section 269P(3) mandates that if the Chief Executive Officer (CEO) of Customs determines that the application meets these criteria, a written order must be issued to declare the goods as subject to a specified item in Schedule 4 of the Customs Tariff Act 1995. In this case, the TCO declares that the flat food freezers are subject to item 50 of the Tariff, reducing the duty rate from 5% to 3%.
The Act imposes specific obligations on the CEO of Customs. According to section 269F, the CEO must decide whether to grant a TCO after assessing the application against the core criteria. If the application meets the criteria, as outlined in section 269C, the CEO is required to issue a TCO. Additionally, under section 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any interested parties who may object to the TCO. In this instance, no objections were received in response to the notice. The TCO comes into effect on the date the application was lodged, as per section 269S(1).
Any breaches of the obligations or requirements under the Act may result in penalties. However, the Explanatory Statement does not specify any particular offences, penalties, or civil/criminal consequences for non-compliance in this context. The focus remains on the procedural correctness of the TCO application and the CEO's decision-making process. The rights of importers are protected, and the TCO does not impose any liabilities on individuals other than the Commonwealth, as per section 269S(1). Importers can apply for a refund of duty on goods imported since the TCO came into force, as per paragraph 126(1)(r) of the Regulations.