EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0611312
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.
Jord International Pty Ltd applied for a TCO in respect of certain header box shoulder plugs on 04 July 2006.
Instrument
TCO No 0611312 was made on 22 September 2006. It declares that those certain header box shoulder plugs 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. 0611312 is taken to have come into force on 04 July 2006.
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 was enacted to provide a framework for the regulation of customs and excise, including the administration of tariffs and the collection of duties. The introduction of Tariff Concession Orders (TCO) under Part XVA of the Act addresses the need to offer concessions on customs duties for certain goods, thereby encouraging trade and economic efficiency. The instrument in question, Tariff Concession Instrument No. 0611312, was introduced to provide a tariff concession for specific header box shoulder plugs, facilitating their importation without the usual customs duty. This was enacted by the Commonwealth Government through the Parliament and aims to meet the core criteria for tariff concessions as specified in the Customs Act 1901, ensuring that no substitutable goods were produced in Australia at the time of application. The process involves applications being assessed by the Chief Executive Officer of Customs, with a public notice period for objections, although none were received for this particular concession.
Scope and Application
The Tariff Concession Instrument No. 0611312 applies to Jord International Pty Ltd and concerns the importation of certain header box shoulder plugs. The instrument is enacted under the Customs Act 1901, specifically within the framework of Part XVA which governs the making of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This legislation targets the goods specified in the application, which in this case are header box shoulder plugs, and allows for a lower rate of customs duty to be applied. The Act applies to the goods themselves, not directly to individuals or entities, but the implications of the concession will impact importers of these goods. The scope of this legislation is national, as it operates under the Commonwealth’s authority and the Customs Act 1901. Notably, the Act excludes certain goods from being subject to a TCO as outlined in section 269SJ of the Act. Additionally, the application of this instrument may be extended or further defined through subordinate instruments, such as regulations or further orders under the Customs Act 1901. The application is effective from the date of the initial application, 04 July 2006, and does not retroactively affect the rights or impose liabilities on any party for actions prior to this date.
Key Provisions
The main operative sections of the Customs Act 1901 in the context of Tariff Concession Orders (TCOs) revolve around the procedures and criteria for making and implementing these orders (sections 269C, 269F, 269P). Section 269F allows any person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods, provided the goods are not specified in section 269SJ as those that cannot be subject to a TCO. The CEO must then decide whether the application meets the core criteria, which is defined in section 269C, requiring that on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269D, 269E). If the CEO is satisfied that the application meets these criteria, they must make a written order declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)).
The obligations and requirements imposed by the Act on parties include the need for the CEO to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid (subsection 269K(1)). This notice must include an invitation for any person who believes there are reasons why the TCO should not be made to lodge a submission with the CEO. Additionally, the CEO must ensure that the TCO does not affect the rights of a person, other than the Commonwealth, to disadvantage them or impose liabilities for anything done or omitted before the date of registration (subsection 269S(1)). The rights of importers are beneficially affected, and they can apply for a refund of duty on goods imported since the TCO is taken to have come into force under paragraph 126(1)(r) of the Regulations.
Any breaches of the provisions outlined in the Customs Act 1901 regarding TCOs could potentially lead to civil or criminal consequences, depending on the nature of the breach. However, the explanatory statement does not specify particular offences, penalties, or maximum penalties for breach. It is likely that penalties would be determined by the relevant sections of the Customs Act 1901 or other related legislation, and could include fines or other sanctions for non-compliance. The precise legal consequences would depend on the specific nature of the breach and the applicable laws.