EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0501259
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.
A.I Scientific Pty Ltd applied for a TCO in respect of certain peristaltic pumps on 24 January 2005.
Instrument
TCO No 0501259 was made on 8 April 2005. It declares that those certain peristaltic pumps 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. 0501259 is taken to have come into force on 24 January 2005.
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 by the Australian Parliament to regulate the import and export of goods, including the imposition of customs duty. The Act includes provisions for Tariff Concession Orders (TCOs) to be made by the Chief Executive Officer of Customs under section 269F, where a lower rate of customs duty applies to goods that are the subject of a TCO. The Tariff Concession Instrument No. 0501259, made under the Customs Act 1901, was introduced to provide a tariff concession for certain peristaltic pumps, reducing the duty rate from 5% to 3%. This was in response to an application by A.I Scientific Pty Ltd on 24 January 2005, after which the CEO was satisfied that no substitutable goods were produced in Australia, meeting the core criteria as per section 269C of the Act. The instrument came into force on the date the application was lodged, 24 January 2005, and does not affect any pre-existing rights or impose new liabilities, beneficially affecting the rights of importers who may apply for a refund of duty.
Scope and Application
The Customs Act 1901, specifically under Part XVA, provides the framework for the issuance of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs (CEO). This legislation applies to individuals or entities that seek to reduce the customs duty on certain imported goods by applying for a TCO. The process is subject to the condition that the goods in question are not specified in section 269SJ of the Act, which lists goods that are ineligible for tariff concessions. The CEO's decision to issue a TCO hinges on whether the application meets the core criteria outlined in section 269C, which requires that no substitutable goods are produced in Australia in the ordinary course of business on the date the application was lodged. This Act applies on a national level across Australia and is enforced by the Commonwealth. Subordinate instruments may extend or clarify the application of the Act, but no exclusions or exemptions are explicitly stated in this particular TCO, TCO No. 0501259, concerning peristaltic pumps. The TCO does not affect the rights of any person, including the Commonwealth, in respect of anything done before its effective date, and it does not impose any new liabilities.
Key Provisions
The Tariff Concession Instrument No. 0501259 under the Customs Act 1901 establishes the conditions for applying a lower rate of customs duty on certain peristaltic pumps, as declared in item 50 of Schedule 4 to the Customs Tariff Act 1995. This reduction is effective from the date of the application for the Tariff Concession Order (TCO), which in this case was 24 January 2005 (sections 269C, 269F, 269P(3)). The application process involves submitting a request to the Chief Executive Officer of Customs (CEO) and meeting the core criteria outlined in section 269C, which requires that no substitutable goods were produced in Australia on the application date (section 269SJ).
Obligations under this Act include the CEO's duty to publish a notice in the Gazette inviting submissions from any interested parties regarding the TCO application. This notice is required as soon as practicable after accepting the application as valid (subsection 269K(1)). The CEO is also tasked with determining whether the application meets the core criteria for a TCO. Once satisfied, the CEO must make a written order declaring the goods to which the prescribed tariff item applies. In the case of A.I Scientific Pty Ltd, the CEO did not receive any submissions opposing the TCO (subsection 269S(1)).
The Act outlines specific consequences for non-compliance with the provisions of the TCO. Although the explanatory statement does not detail criminal or civil penalties for breach, it is implied that the legal framework governing customs and tariffs would apply, potentially including fines or other civil remedies for improper claims or misrepresentations. The general duty of importers and other relevant parties is to adhere to the terms of the TCO and the Customs Act to ensure compliance with the reduced tariff rates.
Importers benefit from the ability to apply for a refund of duty on goods imported since the date the TCO is deemed to have come into force. However, the Act explicitly states that the TCO does not affect the rights of any person, other than the Commonwealth, in a way that disadvantages them or imposes liabilities for actions taken prior to the date of registration. This provision ensures that the rights of importers are not adversely affected and that there are no retroactive liabilities imposed by the TCO.