EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0613412
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.
Kimberly-Clark Australia Pty Ltd applied for a TCO in respect of certain wrappers and/or bundlers parts on 11 August 2006.
Instrument
TCO No 0613412 was made on 03 November 2006. It declares that those certain wrappers and/or bundlers parts 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. 0613412 is taken to have come into force on 11 August 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 Parliament of Australia, establishes a framework for the imposition of customs duties on imported goods. A key feature of this Act is the ability for the Chief Executive Officer of Customs (CEO) to issue Tariff Concession Orders (TCOs) that provide reduced rates of customs duty on certain goods. The Tariff Concession Instrument No. 0613412 was introduced to address the specific issue of providing duty relief for certain wrappers and/or bundlers parts, as applied for by Kimberly-Clark Australia Pty Ltd. The CEO was satisfied that no substitutable goods were produced in Australia, meeting the core criteria for a TCO, and thus issued the order on 3 November 2006. This Instrument aims to ensure that the rights of importers are beneficially affected, allowing them to apply for a refund of duty on goods imported since the TCO came into force on 11 August 2006.
Scope and Application
The Tariff Concession Instrument No. 0613412, made under the Customs Act 1901, applies to specific goods for which Kimberly-Clark Australia Pty Ltd has applied for a Tariff Concession Order (TCO). This legislation facilitates the application process for tariff concessions on certain goods by allowing the Chief Executive Officer of Customs to make written orders that lower the customs duty rate for goods that are not substitutable by products manufactured in Australia. The Act applies to any individual or entity that seeks to import goods that are eligible for tariff concessions, provided that the goods in question are not specified in section 269SJ of the Act, which details goods ineligible for TCOs. The geographic scope of this legislation is national, as it pertains to the importation of goods into Australia and is governed by Commonwealth law. The TCO exempts the specified goods from the general customs duty rate, setting it to free, whereas the usual rate for these goods is 5%. Importantly, the TCO does not retroactively affect the rights of any person, including the Commonwealth, and does not impose any new liabilities on any person, ensuring that the rights of importers are positively affected by allowing them to apply for refunds of duty on goods imported since the effective date of the TCO.
Key Provisions
The key operative sections of this legislation include sections 269C, 269B, 269D, 269E, and 269P, which outline the conditions under which Tariff Concession Orders (TCOs) can be made. Section 269F allows a person to apply for a TCO in respect of goods, and section 269SJ specifies the goods that cannot be subject to a TCO. Section 269C mandates that a TCO application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Definitions for terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269D, 269E, and section 269B, respectively. If the Chief Executive Officer (CEO) of Customs is satisfied that the application meets these criteria, they must make a written order under section 269P(3). The TCO will then apply to the goods specified in the application, as declared in the written order.
The obligations imposed by the Act on the parties and entities it governs include the requirement for the CEO to assess TCO applications against the core criteria. Specifically, the CEO must determine whether any substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Additionally, the CEO is obligated to publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made, as per section 269K(1). This notice must be published as soon as practicable after accepting the application as valid. The TCO itself affects the rights of importers by allowing them to apply for a refund of duty on goods imported since the TCO is deemed to have come into force, as per paragraph 126(1)(r) of the Regulations.
Offences, penalties, or consequences for breach of the Act are not explicitly stated in the provided text. However, the absence of any submissions against the TCO suggests that the process was followed correctly. The TCO does not disadvantage any person or impose liabilities on any person except the Commonwealth, as it only affects the rights of importers beneficially. Importers who meet the criteria can apply for a refund of duty, indicating the primary civil consequence for those who do not comply with the terms of the TCO is the forfeiture of the refund opportunity.