EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0514068
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.
Trindalls Amusements Pty Ltd applied for a TCO in respect of certain Fairground Amusement Rides on 11 October 2005.
Instrument
TCO No 0514068 was made on 9 January 2006. It declares that those certain Fairground Amusement Rides 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. 0514068 is taken to have come into force on 11 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 Customs Act 1901, enacted by the Parliament of Australia, addresses the need for streamlined tariff management by establishing a framework for Tariff Concession Orders (TCOs). These orders, issued by the Chief Executive Officer of Customs, allow for the application of lower customs duty rates on specified goods. The act was designed to facilitate trade by reducing the financial burden on importers of certain goods, provided they meet specific criteria such as the absence of substitutable goods produced in Australia. This legislative instrument aims to promote fair and efficient trade practices while ensuring that the interests of both importers and the government are balanced. The explanatory statement for Tariff Concession Instrument No. 0514068, made under this act, outlines the process followed in granting a concession for certain Fairground Amusement Rides, effective from the date of application, 11 October 2005. This instrument underscores the policy objective of enhancing trade competitiveness by reducing import duties where appropriate.
Scope and Application
The Customs Act 1901, specifically under Part XVA, governs the scheme for Tariff Concession Orders (TCOs) that may be made by the Chief Executive Officer of Customs. These TCOs apply to goods specified in an application made by a person or entity to the CEO. The Act applies to any individual or organisation seeking a concession on customs duty for specific goods, provided those goods are not specified in section 269SJ, which outlines goods ineligible for TCOs. The legislation is applicable nationally as it falls under the Commonwealth's jurisdiction. Importantly, the Act does not disadvantage existing rights or impose liabilities on individuals or entities for actions taken before the TCO's effective date. The Explanatory Statement highlights that the TCO, once effective from the date of application, allows for duty refunds for importers of the specified goods, benefiting those who import after the concession's commencement. The scope of the Act can be further extended or specified through subordinate instruments, ensuring that the application of TCOs remains flexible and responsive to particular needs within the industry.
Key Provisions
The key operative sections of the Tariff Concession Instrument No. 0514068 include sections 269C, 269F, 269P, and 269S of the Customs Act 1901. Section 269F (1) allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). Section 269C outlines the core criteria that must be met for the CEO to consider the TCO application, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269P (3) mandates that if the CEO is satisfied that the application meets the core criteria, they must make a written order declaring the goods subject to the TCO. Section 269S (1) specifies that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged.
The Act imposes several obligations and requirements on the parties involved. Firstly, applicants such as Trindalls Amusements Pty Ltd must ensure their application for a TCO is valid and meets the core criteria specified in section 269C. The CEO must review the application to determine if it meets these criteria and, if satisfied, make a TCO. The CEO is also required to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made, as per subsection 269K(1). In this case, no submissions were received. Additionally, the TCO must not disadvantage any person or impose liabilities in respect of anything done or omitted before the date of registration.
The Act outlines specific offences, penalties, or consequences for breaches. Although the Explanatory Statement does not detail specific penalties for non-compliance with the TCO process itself, it is implied that failure to adhere to the requirements and obligations set forth could lead to legal consequences. The Tariff Concession Instrument No. 0514068 ensures that the rights of importers will be beneficially affected, allowing them to apply for a refund of duty on goods imported since the TCO came into force under paragraph 126(1)(r) of the Regulations. The Act explicitly states that the TCO does not impose any liabilities on any person, emphasising its protective nature towards non-Commonwealth parties.