EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0511358
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.
Sheridan Australia applied for a TCO in respect of certain Bed Linen on 31 August 2005.
Instrument
TCO No 0511358 was made on 20 December 2005. It declares that those certain Bed Linen 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 17.5%. 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. One submission objecting to the TCO application was received from Ecodownunder Pty Ltd.
Further, subsection 269M(1) of the Act provides that if the CEO considers that, in relation to a particular TCO application, a person may have reason to oppose the making of the TCO to which the application relates, he or she may, by notice in writing, invite the person to lodge a written submission with the CEO. The CEO invited Ecodownunder to lodge a written submission.
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. 0511358 is taken to have come into force on 31 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 Tariff Concession Instrument No. 0511358 was introduced under the Customs Act 1901 to address the need for tariff concessions on specific goods that are not produced domestically. Enacted by the Chief Executive Officer of Customs, this instrument aims to ensure that certain imports are subject to a lower rate of customs duty when there are no substitutable goods produced in Australia. The policy objective is to facilitate the import of specific goods, such as the bed linen in this case, by applying a zero percent duty rate instead of the general rate of 17.5%. This concession was granted following an application by Sheridan Australia, and after consultation with interested parties including Ecodownunder Pty Ltd, which submitted an objection. The instrument came into force on the date the application was lodged, 31 August 2005, and it does not affect any pre-existing rights or liabilities of persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0511358, made under Part XVA of the Customs Act 1901, pertains to the application and administration of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). This legislation applies to individuals or entities that apply for tariff concessions for goods specified in their application, provided such goods are not listed in section 269SJ of the Act, which excludes certain items from being subject to a TCO. The Act applies to goods that are not substitutable and not produced in Australia in the ordinary course of business as per the definitions in sections 269D and 269E of the Act. The geographic reach of this Act is national, as it operates under the Customs Act 1901, which is a Commonwealth Act. The CEO’s decision to grant a TCO is based on the criteria outlined in sections 269C and 269P, and it extends to the tariff concessions specified in Schedule 4 to the Customs Tariff Act 1995. The instrument can be further extended or restricted through subordinate instruments as deemed necessary by the CEO. The TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on persons in respect of actions taken before the TCO’s registration.
Key Provisions
The Tariff Concession Instrument No. 0511358 pertains to the Customs Act 1901, specifically under Part XVA, which outlines the procedure for Tariff Concession Orders (TCOs). Section 269F of the Act allows for an application to the Chief Executive Officer of Customs (CEO) for a TCO concerning certain goods. If the CEO determines that the application does not involve goods prohibited by section 269SJ and meets the core criteria stipulated in section 269C, the CEO must issue a written TCO (section 269P(3)). This order declares that the specified goods will be subject to a reduced customs duty rate, as detailed in Schedule 4 of the Customs Tariff Act 1995.
Under this legislation, the CEO has several obligations. Firstly, the CEO must assess the TCO application against the core criteria outlined in section 269C to determine if the goods are substitutable and if they are produced in Australia in the ordinary course of business (sections 269B, 269C, and 269D). The CEO must also publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any interested parties to submit objections (subsection 269K(1)). If the CEO believes that a particular person may oppose the making of a TCO, they may invite that person to lodge a written submission (subsection 269M(1)). Additionally, the CEO is required to ensure that the TCO does not disadvantage any person or impose liabilities on them in respect of actions taken before the TCO's effective date.
Failure to comply with the provisions of the Customs Act 1901 and the associated regulations may result in various consequences. While the explanatory statement does not explicitly list specific offences or penalties, breaches of the Act could potentially lead to legal actions for non-compliance, including administrative penalties or legal sanctions as per the applicable laws. The precise nature and extent of penalties would depend on the specific breaches and the provisions of the Customs Act 1901 and related regulations.