EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0508308
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.
Tony’s Tuna International Pty Ltd applied for a TCO in respect of certain Freezers on 24 June 2005.
Instrument
TCO No 0508308 was made on 9 September 2005. It declares that those certain 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 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. 0508308 is taken to have come into force on 24 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 Parliament of Australia, establishes a framework for the administration of customs and excise duties. In 2005, the Tariff Concession Instrument No. 0508308 was introduced to address the specific issue of granting tariff concessions for certain goods, thereby providing economic benefits and encouraging trade. This instrument was designed to offer relief from customs duties for goods that are not produced domestically, aligning with the policy objective of promoting competition and facilitating the import of goods that are not manufactured in Australia. The instrument was created under the authority of the Customs Act 1901, which allows the Chief Executive Officer of Customs to make Tariff Concession Orders based on specific criteria, such as the absence of substitutable goods produced in Australia. This legislative measure ensures that businesses can access necessary imports at reduced duty rates, thereby supporting economic efficiency and consumer choice.
Scope and Application
The Tariff Concession Instrument No. 0508308 under the Customs Act 1901 applies to the concession of customs duty rates for specific goods, in this case, certain Freezers. This legislation targets entities and individuals involved in the importation of these goods, effectively reducing the duty rate from 5% to 0% for those goods specified in the instrument. The scope of the Act extends to the Commonwealth level, and its application is limited to the goods specified within the instrument. Notably, the instrument does not apply to goods that are prohibited from being subject to a Tariff Concession Order under section 269SJ of the Customs Act 1901. The Act's application is further detailed through subordinate instruments such as the Customs Tariff Act 1995, which specifies the applicable duty rates. This instrument does not disadvantage any person other than the Commonwealth and does not impose any liabilities on any person.
Key Provisions
The main operative sections of this legislation pertain to Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO for certain goods. If the application is not for goods specified in section 269SJ, which cannot be subject to a TCO, the CEO must determine if the application meets the core criteria (section 269C). If the CEO is satisfied that the application meets these criteria, they must make a written order (a TCO) stating that the goods in question are subject to a specific rate of duty (section 269P(3)).
The obligations imposed by this Act on parties or entities include the requirement for applicants to ensure their goods do not fall under the exclusions listed in section 269SJ. Additionally, the CEO must promptly publish a notice in the Gazette when accepting a valid application, inviting any interested parties to lodge submissions against the TCO (subsection 269K(1)). If no submissions are received, the CEO proceeds to make the TCO. The rights of importers will be beneficially affected, as they can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force (paragraph 126(1)(r) of the Regulations).
There are no specific offences, penalties, or civil/criminal consequences stated in the explanatory statement for breaches of this Act. However, the general principle is that the TCO does not affect the rights of any person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person in respect of anything done or omitted to be done before the date of registration. This ensures that the TCO does not retroactively impose any liabilities on any person.