EXPLANATORY STATEMENT
Tariff Concession Instrument No.0502991
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.
Waeco Pacific Pty Ltd applied for a TCO in respect of certain portable coolers on 8 March 2005.
Instrument
TCO No 0502991 was made on 20 May 2005. It declares that those certain portable coolers 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 0%.
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.0502991 is taken to have come into force on 8 March 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, enacted by the Australian Parliament, provides a framework for administering customs and excise duties. The introduction of Part XVA of the Act aims to address the need for a streamlined process to grant tariff concessions on specific goods. This was intended to promote fair trade practices by ensuring that goods eligible for reduced customs duty are not being domestically produced. The Tariff Concession Order (TCO) mechanism allows the Chief Executive Officer of Customs to apply a lower rate of customs duty on certain goods, provided no substitutable goods are produced in Australia. This was introduced to support industry competitiveness and consumer access to affordable goods. The explanatory statement for Tariff Concession Instrument No. 0502991 outlines that this particular TCO, concerning certain portable coolers, was issued after a successful application by Waeco Pacific Pty Ltd on 8 March 2005, and it was published in the Gazette, inviting any objections which none were received. The TCO came into effect from the date of the application, thereby granting a zero percent duty rate on the specified goods, benefiting importers by potentially qualifying them for duty refunds.
Scope and Application
The Tariff Concession Instrument No. 0502991 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, in this case, portable coolers, from Waeco Pacific Pty Ltd. The instrument is part of a broader scheme established under Part XVA of the Customs Act, enabling the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that provide lower rates of customs duty for the specified goods. The application of this legislation is national in scope, as it pertains to the federal customs regime in Australia. The Act applies to any person or entity that can demonstrate that the goods in question are not substitutable by locally produced goods, thereby meeting the core criteria set out in sections 269C and 269D of the Act. The instrument does not impose any liabilities or disadvantages on individuals or entities except the Commonwealth, and it does not affect any pre-existing rights as at the date of registration. Any exclusions or specific conditions are detailed within the Tariff Concession Instrument itself and the relevant sections of the Customs Act and Customs Tariff Act 1995.
Key Provisions
The Tariff Concession Instrument No. 0502991 pertains to the Customs Act 1901 and establishes a concession for certain portable coolers, reducing the customs duty rate from 5% to 0% (sections 269F, 269P). The main operative sections in this context include section 269F, which allows for the application of Tariff Concession Orders (TCOs), and section 269P, which mandates the CEO to issue a TCO if certain conditions are met. Specifically, a TCO application meets the core criteria if no substitutable goods are produced in Australia in the ordinary course of business on the day the application was lodged (section 269C).
The Act imposes several obligations on parties involved in the process. Firstly, any person can apply to the CEO for a TCO concerning goods (section 269F). The CEO must then determine if the application is valid and meets the core criteria, specifically ensuring that the goods in question are not those listed in section 269SJ, which are ineligible for TCOs (section 269P(3)). Additionally, once a TCO application is accepted as valid, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections or reasons why the TCO should not be granted (subsection 269K(1)).
In the case of a breach or failure to comply with the requirements set out in the Customs Act 1901, there are potential legal consequences. The Act does not explicitly state specific offences or penalties for non-compliance with the TCO provisions, but it is likely that breaches could result in legal actions under the broader framework of the Customs Act. These actions might include fines or other penalties as determined by the relevant courts. The CEO’s decision-making process and the application of TCOs must be conducted within the parameters of the Act, ensuring compliance to avoid any adverse legal repercussions.
The TCO No. 0502991, which was made on 20 May 2005, is effective from 8 March 2005, the date the application was lodged (subsection 269S(1)). The TCO does not retroactively affect any rights or impose liabilities on persons other than the Commonwealth for actions taken before its registration (subsection 269S(2)). Importantly, this TCO provides benefits to importers who can apply for a refund of duty on goods imported since the effective date of the TCO (paragraph 126(1)(r) of the Regulations). This ensures that any financial implications of the duty reduction are appropriately managed within the legislative framework.