EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0508791
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.
Fujifilm (Australia) Pty Ltd applied for a TCO in respect of certain photographic paper on 08 July 2005.
Instrument
TCO No 0508791 was made on 28 October 2005. It declares that those certain photographic papers 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. 0508791 is taken to have come into force on 08 July 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 Tariff Concession Instrument No. 0508791, enacted in 2005, addresses the need for tariff concessions within the Customs Act 1901. This legislation facilitates the granting of lower customs duties on specific goods, provided they meet certain criteria as outlined in the Act. The instrument was introduced to assist businesses by reducing the cost of importing goods that are not produced domestically and for which no suitable domestic substitutes exist, thereby promoting competitive imports and potentially benefiting consumers through lower prices.
The Tariff Concession Order was created in response to an application by Fujifilm (Australia) Pty Ltd for a concession on certain photographic papers. The order, which was published in the Gazette and received no objections, specifies that these goods are subject to a zero percent duty rate, down from the general 5% duty. This measure aims to ensure that the rights of importers are positively affected and that no existing rights or liabilities of non-Commonwealth entities are adversely impacted, while providing a clear policy objective of facilitating the importation of goods that are not domestically produced and for which there are no suitable domestic alternatives.
Scope and Application
The Tariff Concession Instrument No. 0508791 under the Customs Act 1901 applies to the particular photographic papers for which Fujifilm (Australia) Pty Ltd applied for a tariff concession. The Act allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) to apply a lower rate of customs duty to certain goods, provided the application meets specified criteria. In this instance, the CEO determined that no substitutable goods were produced in Australia, thereby satisfying the core criteria for a TCO. The geographic and jurisdictional reach of this Act is national, as it is a Commonwealth Act. The application of a TCO is not limited to any specific industry but can be applied to various goods as long as the criteria are met. The Act provides for exclusions, such as goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a TCO. The application process also involves public consultation, as mandated by the Act, although in this case, no submissions were received. The TCO does not retroactively affect the rights of any person or impose liabilities for actions taken before its registration.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0508791 under the Customs Act 1901 (section 269F) outline the process for applying for a Tariff Concession Order (TCO) and the criteria for its approval. Specifically, section 269F allows an individual or entity to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of certain goods, provided these goods are not specified in section 269SJ. If the CEO is satisfied that the application meets the core criteria as defined in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, a TCO will be issued.
Section 269C further clarifies that a TCO application meets the core criteria if no substitutable goods, as defined in section 269D, were produced in Australia in the ordinary course of business. This means that for the CEO to approve a TCO, there must be no goods produced domestically that can be used in place of the goods in question. Furthermore, the definitions in sections 269D, 269E, and 269F are crucial for determining what constitutes "goods produced in Australia," "ordinary course of business," and "substitutable goods," respectively.
Entities and individuals governed by this Act must adhere to the obligations and requirements outlined in the sections mentioned. The primary obligation is for applicants to ensure that their TCO applications meet the core criteria by providing evidence that no substitutable goods are produced in Australia. Upon acceptance of an application, the CEO is required to publish a notice in the Gazette (subsection 269K(1)), inviting any interested parties to lodge submissions if they believe the TCO should not be made. In the case of TCO No. 0508791, no submissions were received.
In terms of offences, penalties, or consequences, the Customs Act 1901 does not explicitly state penalties for non-compliance with the TCO process itself. However, general provisions within the Act may apply to actions that contravene its requirements. For instance, if an entity knowingly submits false information in their TCO application, they could face penalties under the general legal framework for misleading or deceptive conduct. While the specific instrument does not outline penalties, broader legal consequences could include fines or legal actions for misrepresentation or fraud related to the TCO application process.