EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0506768
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.
Amcor Packaging (Australia) Pty Ltd applied for a TCO in respect of certain aerosol container plastic sleeve inserters on 06 June 2005.
Instrument
TCO No 0506768 was made on 14 October 2005. It declares that those certain aerosol container plastic sleeve inserters 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 free.
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. 0506768 is taken to have come into force on 06 June 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 Commonwealth Parliament, provides a framework for the regulation of customs duties in Australia. One of the key mechanisms within this framework is the ability to issue Tariff Concession Orders (TCOs) that offer reduced rates of customs duty on certain goods, provided specific criteria are met. This legislative instrument, Tariff Concession Instrument No. 0506768, was introduced to facilitate the reduction of customs duty on particular aerosol container plastic sleeve inserters for Amcor Packaging (Australia) Pty Ltd, addressing the gap in the availability of affordable imported goods that are not produced domestically. The CEO of Customs determined that these goods were not substitutable by any Australian-produced items, thus meeting the core criteria for a TCO. The instrument came into force on the date the application was lodged, ensuring that the rights of importers were beneficially affected without imposing any liabilities.
Scope and Application
The Customs Act 1901 establishes a framework for the application and administration of Tariff Concession Orders (TCOs) through Part XVA. This section applies to any person or entity seeking to import goods into Australia that are not produced domestically and which can benefit from reduced customs duty rates. The scope of the Act extends to the Chief Executive Officer of Customs, who has the authority to assess and approve TCO applications based on whether the goods in question have substitutable domestic counterparts. Specifically, the Act mandates that a TCO application can only be approved if no substitutable goods are produced in Australia in the ordinary course of business. The application of the Act is national, as it is a Commonwealth Act, and its provisions apply across Australia. Any exclusions are clearly defined, notably under section 269SJ, which lists goods that cannot be subject to a TCO. The Act also provides for the CEO to publish notices in the Gazette inviting public submissions on proposed TCOs, although in this instance, no submissions were received. The commencement of a TCO is retroactive to the date the application was lodged, ensuring that the rights of importers are protected and that they may apply for duty refunds on eligible imports from that date.
Key Provisions
The Tariff Concession Instrument No. 0506768, under section 269F of the Customs Act 1901, facilitates the granting of Tariff Concession Orders (TCOs) for specific goods. When a person, such as Amcor Packaging (Australia) Pty Ltd, applies for a TCO, the Chief Executive Officer of Customs (CEO) evaluates the application against the criteria set out in section 269C. If the CEO determines that the application meets the core criteria, specifically that no substitutable goods were produced in Australia at the time of application, a TCO is issued. In this instance, the CEO found that no substitutable goods were produced in Australia for certain aerosol container plastic sleeve inserters, leading to the issuance of TCO No. 0506768 on 14 October 2005.
The obligations under this legislation require that the CEO of Customs must make a written TCO if the application meets the core criteria, as outlined in section 269C. This includes ensuring that no substitutable goods are produced in Australia at the time of application, and that the goods in question do not fall under the list of goods specified in section 269SJ that cannot be subject to a TCO. The CEO also has an obligation to publish a notice in the Gazette inviting any interested parties to submit reasons why the TCO should not be made, as per section 269K(1). In this case, no submissions were received, facilitating the CEO's decision to proceed with the TCO.
In terms of potential breaches and penalties, the Act does not explicitly detail offences or penalties for failure to comply with the TCO provisions. However, any breaches of the Customs Act 1901 or related regulations could result in civil or criminal consequences, including fines and imprisonment, depending on the severity and intent of the breach. The precise penalties are determined by the courts based on the specific circumstances of each case.