EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0611480
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.
Virbac (Australia) Pty Ltd applied for a TCO in respect of certain cats and/or dogs flea and/or tick collars on 05 July 2006.
Instrument
TCO No 0611480 was made on 22 September 2006. It declares that those certain cats and/or dogs flea and/or tick collars 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. 0611480 is taken to have come into force on 05 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, enacted by the Australian Parliament, provides a framework for the regulation of imports and exports, including the imposition of customs duties. In addressing the need to provide tariff relief for certain goods, the Act allows for the creation of Tariff Concession Orders (TCOs) under Part XVA, which can reduce or eliminate customs duties on specified goods. The Tariff Concession Instrument No. 0611480, made pursuant to this Act, aims to provide a concession by reducing the duty on certain cats and/or dogs flea and/or tick collars to free, as no substitutable goods are produced in Australia. This instrument was created following an application by Virbac (Australia) Pty Ltd and subsequent satisfaction by the Chief Executive Officer of Customs that the application met the core criteria for a tariff concession. The TCO ensures that the rights of importers are positively affected and does not impose any liabilities on any person.
Scope and Application
The Customs Act 1901, specifically Part XVA, establishes a framework through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO) to lower the rate of customs duty on certain goods. The Act applies to any person or entity that seeks to import goods eligible for a TCO, provided that the goods are not specified in section 269SJ of the Act, which lists items ineligible for tariff concessions. The application process requires the applicant to demonstrate that no substitutable goods are produced in Australia in the ordinary course of business at the time the application is lodged, as per sections 269C and 269D. The CEO must then decide whether to issue a TCO, which, if granted, applies a specified lower rate of duty from the date the application was lodged, as outlined in subsection 269S(1). This Act has a national jurisdictional reach, impacting all entities within Australia involved in the importation of goods subject to a TCO. The application process includes a consultation period where interested parties can submit objections, though in this instance, no objections were received. The issuance of TCOs can be further regulated through subordinate instruments, allowing for the detailed specification of goods and conditions under which concessions apply.
Key Provisions
The main sections of the Tariff Concession Instrument No. 0611480 under the Customs Act 1901 require that the Chief Executive Officer of Customs (CEO) makes a written order, referred to as a Tariff Concession Order (TCO), which declares certain specified goods to which a particular rate of duty applies (s 269P). Specifically, this instrument (TCO No. 0611480) declares that certain cats and/or dogs flea and/or tick collars are goods to which item 50 of Schedule 4 to the Tariff applies, meaning the rate of duty for these goods is free (s 269P(3)). This tariff concession applies from the date the application for the TCO was lodged, which was 05 July 2006 (s 269S(1)).
The obligations imposed by the Customs Act 1901 on the parties governed by this legislation include the requirement for an applicant to submit an application for a TCO to the CEO (s 269F). The CEO must then assess whether the application meets the core criteria, which are outlined in sections 269C, 269B, 269D, and 269E. If the application meets these criteria, the CEO is mandated to make a written order declaring the specified goods to which the prescribed tariff applies (s 269P). Additionally, the CEO is required to publish a notice in the Gazette inviting any interested parties to lodge submissions if they believe the TCO should not be made (s 269K(1)).
The Tariff Concession Instrument No. 0611480 does not impose any liabilities on any person, including importers or exporters, and does not disadvantage anyone as it only affects rights from the date of registration forward (s 269S(1)). Importers will benefit from the ability to apply for a refund of duty on goods imported since the TCO came into force on 05 July 2006 (Reg 126(1)(r)).
In terms of penalties or consequences for breach, the Customs Act 1901 does not specify particular offences or penalties related to the making or breach of a TCO. However, any failure to comply with the conditions set out in the TCO or other related legislative requirements could potentially lead to general customs law penalties, which may include fines or other civil or criminal sanctions depending on the nature and severity of the breach.