EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0511035
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.
J J Lennard Food Equipment Pty Ltd applied for a TCO in respect of certain Refrigerated Display Ice Cream Cabinets on 19 August 2005.
Instrument
TCO No 0511035 was made on 28 October 2005. It declares that those certain Refrigerated Display Ice Cream Cabinets 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. 0511035 is taken to have come into force on 19 August 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, establishes a framework for the regulation of customs and excise, including the imposition of tariffs on imported goods. To address the economic and competitive needs of businesses, the Act allows for Tariff Concession Orders (TCOs) that can reduce the duty on specific goods. Tariff Concession Instrument No. 0511035 was introduced to grant a concession on certain Refrigerated Display Ice Cream Cabinets, reducing their customs duty from 5% to 0%. This was enacted following an application by J J Lennard Food Equipment Pty Ltd, and the Chief Executive Officer of Customs determined that no substitutable goods were produced in Australia, meeting the core criteria for the concession. The instrument aims to facilitate trade and support local businesses by making imported goods more competitively priced without disadvantaging existing rights or imposing new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0511035, under the Customs Act 1901, applies to goods specified in the instrument, namely certain Refrigerated Display Ice Cream Cabinets. This Act facilitates the application process for tariff concession orders, which lower the customs duty on particular goods, provided they meet the core criteria set out in the Act. The Act is administered by the Chief Executive Officer of Customs, who assesses applications to determine whether the goods in question are substitutable by any produced domestically, thus qualifying for a reduced tariff rate. The legislation operates on a national level, as it is part of the Commonwealth’s customs regulations. There are specific exclusions outlined in section 269SJ of the Act, which detail the goods that cannot be subject to a tariff concession order. The Act’s scope can be extended or further defined through subordinate instruments, such as regulations or further orders, which may provide additional specifications or exceptions to the application of tariff concessions.
Key Provisions
The main operative sections of the Customs Act 1901 in relation to Tariff Concession Orders (TCOs) include sections 269C, 269P, and 269S. Section 269C of the Act outlines the core criteria for a TCO, which involves ensuring that no substitutable goods are produced in Australia on the day the application is lodged. Section 269P requires the Chief Executive Officer (CEO) of Customs to make a written order if the application meets the core criteria, as set out in section 269C. Section 269S specifies that a TCO comes into force on the day the application is lodged, not the day it is made.
The Act imposes several obligations on the parties involved. For instance, section 269F allows a person to apply to the CEO for a TCO concerning specific goods, provided these goods do not fall under the exceptions listed in section 269SJ. The CEO is required to determine if the application meets the core criteria as stipulated in section 269C. Additionally, section 269K mandates that the CEO must publish a notice in the Gazette, inviting any interested parties to submit objections if they believe the TCO should not be granted. If no submissions are received, the CEO proceeds to make the TCO.
Any breach of the provisions outlined in the Customs Act 1901 concerning Tariff Concession Orders can lead to various consequences. Although the Explanatory Statement does not detail specific offences or penalties, under general Australian law, non-compliance with customs regulations can result in civil or criminal penalties. Civil penalties can include fines, while criminal penalties might encompass imprisonment, depending on the severity and intent of the breach. The maximum penalties would be determined by relevant laws applicable to customs violations at the time of the offence.
In summary, Tariff Concession Orders under the Customs Act 1901 allow for reduced customs duty rates on specified goods if certain criteria are met. The CEO of Customs plays a pivotal role in assessing applications and ensuring compliance with the core criteria. While the Explanatory Statement does not detail specific penalties for breaches, non-compliance with customs regulations generally carries significant legal consequences, including fines and potential imprisonment.