EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0513490
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.
Stegbar Wardrobes & Showers applied for a TCO in respect of certain glass cutters and/or breakers on 4 October 2005.
Instrument
TCO No 0513490 was made on 23 December 2005. It declares that those certain glass cutters and/or breakers 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.0513490 is taken to have come into force on 4 October 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. 0513490 was enacted under the Customs Act 1901 to address a specific issue related to the application of customs duty on certain goods. The instrument was introduced to provide tariff concessions for goods that do not have Australian-produced substitutes, thereby promoting the import of these goods and potentially reducing costs for importers. The instrument was developed in response to an application by Stegbar Wardrobes & Showers for a tariff concession on certain glass cutters and breakers. The instrument was issued by the Chief Executive Officer of Customs and came into force on 4 October 2005. The primary objective of this instrument is to ensure that the tariff concession does not disadvantage any person other than the Commonwealth and does not impose any liabilities on any person. This instrument is an example of how the Customs Act 1901 can be used to provide targeted tariff relief to importers of specific goods.
The Tariff Concession Instrument No. 0513490 was enacted by the relevant legislature to address the gap in the Customs Act 1901 that allowed for the application of customs duty on goods that do not have Australian-produced substitutes. The instrument provides a mechanism for the Chief Executive Officer of Customs to grant tariff concessions on such goods, subject to meeting the core criteria set out in the Act. The instrument was developed in consultation with relevant stakeholders and was subject to a publication in the Gazette, inviting any person who considered that there were reasons why the tariff concession should not be made to lodge a submission with the CEO. The instrument came into force on 4 October 2005 and 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 primary policy objective of this instrument is to provide targeted tariff relief to importers of specific goods, thereby promoting the import of these goods and potentially reducing costs for importers.
Scope and Application
The Tariff Concession Instrument No. 0513490 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, in this case, certain glass cutters and breakers. The instrument is made by the Chief Executive Officer of Customs and comes into effect on the date the application is lodged. The Act applies nationally across Australia, with the scope extending to any goods for which an application is made, provided that no substitutable goods are produced in Australia. The exemption from customs duty applies only to the specified goods and does not affect any rights or liabilities of persons other than the Commonwealth. The exemption does, however, allow for the refund of duties for importers of the specified goods since the date the TCO was taken to have come into force. The application process and the decision-making authority of the CEO can be extended or modified through subordinate instruments, which may include regulations or further clarifications on the criteria for tariff concessions.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0513490 pertain to the granting of tariff concession orders (TCOs) for certain goods, as outlined in Part XVA of the Customs Act 1901 (section 269C, 269F, 269P(3)). Section 269F allows an applicant to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of specific goods. If the application is not disqualified under section 269SJ, the CEO must evaluate whether it meets the core criteria as stipulated in section 269C. If the CEO is satisfied that the application meets these criteria, they must make a written order (section 269P(3)). This particular Instrument No. 0513490 concerns the application for a TCO regarding certain glass cutters and breakers, which are now subject to item 50 of Schedule 4 to the Customs Tariff Act 1995.
The obligations imposed by the Act on the parties involved primarily concern the CEO of Customs, who is responsible for deciding whether to grant a TCO based on the application and the criteria set out in the Act. Specifically, the CEO must ensure that the application is not disqualified under section 269SJ and must confirm that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). If the CEO is satisfied with the application, they must make a written TCO (section 269P(3)). Additionally, under section 269K(1), the CEO must publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission. In this case, the CEO did not receive any submissions.
The Act does not explicitly outline offences, penalties, or consequences for breach in relation to Tariff Concession Orders. However, it does establish a framework for the CEO to follow in deciding whether to grant a TCO, including the requirement to consider any submissions received from the public. In this specific instance, no submissions were received, and the CEO was satisfied that the application met the core criteria. The TCO declared that certain glass cutters and breakers are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a duty-free rate of 5% on these goods. The TCO came into force on 4 October 2005, the date on which the application was lodged, and does not impose any liabilities on any person. Importers of such goods can apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force, under paragraph 126(1)(r) of the Regulations.