EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0511230
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.
W.W. Wedderburn Pty Ltd applied for a TCO in respect of certain balances and/or scales on 24 August 2005.
Instrument
TCO No 0511230 was made on 11 November 2005. It declares that those certain balances and/or scales 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. 0511230 is taken to have come into force on 24 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, as amended, provides for a scheme under which Tariff Concession Orders (TCOs) may be made to apply lower rates of customs duty on specified goods. Enacted by the Australian Parliament, this legislation aims to facilitate trade by reducing the cost of imported goods for consumers and businesses. The Tariff Concession Instrument No. 0511230, enacted on 11 November 2005, is an example of how this scheme operates. In this instance, the Chief Executive Officer of Customs granted a TCO to W.W. Wedderburn Pty Ltd for certain balances and/or scales, setting the duty rate at free instead of the general 5% rate, effective from 24 August 2005. The policy objective underpinning this concession is to support industries by ensuring they have access to competitively priced imported goods, thereby promoting economic efficiency and consumer benefit.
Scope and Application
The Tariff Concession Instrument No. 0511230 under the Customs Act 1901 applies to specific goods, namely certain balances and/or scales, for which W.W. Wedderburn Pty Ltd applied for a Tariff Concession Order (TCO). The instrument is applicable to entities involved in the importation of these goods, and the concession is granted to reduce the customs duty rate from the general 5% to free. This concession applies to the Commonwealth of Australia and operates within the legislative framework established by the Customs Act 1901 and the Customs Tariff Act 1995. The application of the TCO is effective from the date the application was lodged, 24 August 2005, and no submissions opposing the TCO were received during the consultation period. Notably, the TCO does not impose any liabilities on individuals or entities and does not disadvantage anyone's rights as they stood at the date of registration.
Key Provisions
The Customs Act 1901 (the Act) allows for the creation of Tariff Concession Orders (TCOs) under Part XVA, which reduce customs duty on specific goods (s 269F). Section 269C stipulates that a TCO application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged, with the definitions of "substitutable goods," "ordinary course of business," and "goods produced in Australia" provided in sections 269D, 269E, and 269F respectively. If the Chief Executive Officer of Customs (CEO) is satisfied that these criteria are met, they must issue a TCO (s 269P(3)). This order applies a prescribed tariff item from Schedule 4 of the Customs Tariff Act 1995, as evidenced by TCO No. 0511230, which was issued on 11 November 2005 for certain balances and/or scales, applying item 50 of Schedule 4 and reducing the duty rate from 5% to free.
The Act imposes several obligations on the parties involved in the TCO process. An applicant must submit an application to the CEO, who is then required to assess whether the application meets the core criteria (s 269C). Once an application is accepted as valid, the CEO must publish a notice in the Gazette inviting submissions from any interested parties who might have reasons to oppose the TCO (s 269K(1)). For TCO No. 0511230, no submissions were received in response to this notice. The TCO also has a commencement date that coincides with the date the application was lodged (s 269S(1)), meaning it was effective from 24 August 2005. Importantly, the TCO does not affect the rights of any person, including the Commonwealth, as at the date of registration (s 269S(2)), and it does not impose any liabilities on any person.
In terms of penalties and consequences, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches related to TCOs. However, any misuse or fraudulent claims related to the concessions provided by a TCO could potentially lead to legal consequences under other relevant sections of the Customs Act or related legislation. For instance, if an entity falsely claims tariff concessions, they could be subject to penalties under the Customs Act for fraud or misrepresentation. The precise penalties would depend on the nature and severity of the offence, but they could include fines or other financial penalties, as well as potential imprisonment.