EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0514160
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.
Antler Australia Pty Ltd applied for a TCO in respect of certain Trolleys on 13 October 2005.
Instrument
TCO No 0514160 was made on 9 January 2006. It declares that those certain Trolleys 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. 0514160 is taken to have come into force on 13 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. 0514160, enacted in 2006, is an instrument under the Customs Act 1901 designed to address the need for tariff concessions on specific imported goods. This legislation was introduced to provide a mechanism whereby the Chief Executive Officer of Customs could reduce the customs duty on certain goods, thereby facilitating trade and potentially lowering costs for businesses and consumers. The instrument was enacted by the Australian Parliament, aiming to ensure that tariff concessions are granted in a manner that is fair and conducive to the economic interests of Australia while not disadvantaging any party. The policy objective is to allow for the importation of goods at a reduced duty rate where it is determined that there are no suitable domestic alternatives, thus encouraging competition and efficiency in the market.
Scope and Application
The Tariff Concession Instrument No. 0514160 under the Customs Act 1901 applies to goods specified in the instrument, namely certain Trolleys, which are subject to a Tariff Concession Order (TCO) issued by the Chief Executive Officer of Customs. This instrument extends to any person or entity that imports these specific Trolleys into Australia, providing them with a concession on the rate of customs duty applied to these goods. The instrument operates nationally, as it falls under the jurisdiction of the Commonwealth of Australia, and it specifically addresses the importation of goods into Australia. The TCO does not apply to any goods that are listed in section 269SJ of the Act, which excludes certain types of goods from tariff concessions. The commencement of this TCO is retroactive to the date the application was lodged, ensuring that it does not disadvantage any existing rights of importers or impose liabilities for actions taken prior to its registration. The process includes a requirement for the CEO to publish a notice in the Gazette to invite submissions, although in this case, no submissions were received.
Key Provisions
The primary operative sections of the Customs Act 1901 in relation to Tariff Concession Orders (TCO) are sections 269F, 269C, and 269P. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of certain goods. Section 269C sets out the core criteria that the CEO must consider when deciding whether to make a TCO. Specifically, it states that a TCO application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P requires the CEO to make a written order if they are satisfied that the application meets the core criteria, effectively declaring that the goods in question are subject to a prescribed item in Schedule 4 to the Customs Tariff Act 1995.
The Customs Act imposes several obligations on the parties involved. The CEO has the responsibility of deciding whether an application for a TCO meets the core criteria outlined in section 269C. If the application meets these criteria, the CEO must make a TCO, as mandated by section 269P. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made, as per section 269K(1). The applicant, in this case Antler Australia Pty Ltd, must ensure that the application for a TCO is made in accordance with the requirements of the Act and that it provides all necessary information for the CEO to make an informed decision.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the explanatory statement for breach of the Customs Act in relation to TCOs. However, if the CEO determines that an application does not meet the core criteria, they are not required to make a TCO, and the applicant's request will be denied. Failure to comply with other provisions of the Customs Act or the Customs Regulations 1993 could lead to penalties as specified in those respective acts. The explanatory statement does not provide details on such penalties but indicates that the TCO itself does not impose any liabilities on any person.