EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0514121
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.
Bisc Pty Ltd applied for a TCO in respect of certain Egg Packers on 12 October 2005.
Instrument
TCO No 0514121 was made on 3 January 2006. It declares that those certain Egg Packers 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. 0514121 is taken to have come into force on 12 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. 0514121 was enacted under the Customs Act 1901, aiming to address the need for tariff concessions on specific goods that are not produced domestically. This instrument facilitates a reduction in customs duty rates for certain Egg Packers, as applied for by Bisc Pty Ltd on 12 October 2005. The Australian Customs and Border Protection Service, through the Chief Executive Officer, determined that no substitutable goods were produced in Australia, thus meeting the core criteria for the concession. The Tariff Concession Order (TCO) was made on 3 January 2006, reducing the duty from 5% to 0% for these goods, effective from the date of the application. This legislative measure ensures that importers of these goods are not disadvantaged by the retrospective application of the concession and can seek refunds for duties paid prior to the TCO's effective date.
Scope and Application
The Customs Act 1901, specifically Part XVA, enables the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) that apply reduced rates of customs duty on certain goods. This applies to any person or entity that imports goods which are subject to a TCO, thereby benefiting from the lower duty rates specified in these orders. The geographic reach of this legislation is national, as it applies across Australia and is managed by the Commonwealth through the CEO of Customs. The Act excludes certain goods from being subject to a TCO, as specified in section 269SJ of the Act, which lists those goods that cannot be covered by such orders. The application of the Act may be further defined or restricted by subordinate instruments such as regulations, which can provide additional criteria or exemptions not explicitly stated in the primary Act. The process for issuing a TCO includes a requirement for public consultation, where any objections to the concession can be lodged, although no objections were received for TCO No 0514121. This particular TCO, which came into effect on 12 October 2005, pertains to certain Egg Packers and has set their duty rate at 0%, down from the general rate of 5%, provided that no substitutable goods are produced in Australia.
Key Provisions
The main sections of this legislation are sections 269C, 269F, and 269P, which outline the process for making Tariff Concession Orders (TCO) and the conditions that must be met for such orders to be made. Section 269F of the Customs Act 1901 (the Act) allows for the application to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of specific goods. If the CEO is satisfied that the application meets the core criteria, as defined in section 269C, they must make a written order (a TCO) declaring that the goods in question are subject to a prescribed tariff item. Section 269P(3) further details that the CEO must make a TCO if they are satisfied that no substitutable goods were produced in Australia. The CEO must also publish a notice in the Gazette inviting submissions on the proposed TCO, as required by section 269K(1).
The Act imposes specific obligations on the CEO when considering applications for TCOs. The CEO must ensure that the application does not relate to goods specified in section 269SJ of the Act, which are ineligible for TCOs. Additionally, the CEO must verify that the application meets the core criteria outlined in section 269C, which includes confirming that no substitutable goods were produced in Australia on the date the application was lodged. The CEO must also publish a notice in the Gazette as soon as practicable after accepting the application as valid, inviting any interested parties to submit objections if they believe the TCO should not be granted. The CEO must consider any submissions received before making a decision.
There are no explicit offences, penalties, or civil/criminal consequences mentioned in the text for breaches of the Act's provisions. However, non-compliance with the requirements to properly assess and process TCO applications could potentially lead to legal challenges or administrative consequences if an improperly granted TCO is found to be invalid. The text does not specify any maximum penalties for breaches, as no such provisions are stated within the provided excerpt.