EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0616953
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.
Becki Fashion applied for a TCO in respect of certain imitation jewellery on 08 September 2006.
Instrument
TCO No 0616953 was made on 01 December 2006. It declares that those certain imitation jewellery areis a 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. 0616953 is taken to have come into force on 08 September 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 for the regulation of customs and excise duties, including the establishment of a scheme for Tariff Concession Orders (TCOs). The problem or gap addressed by this legislation is to provide relief from customs duties for certain imported goods under specific circumstances, particularly where no substitutable goods are produced in Australia. This is intended to facilitate the importation of goods that are not domestically produced, thereby supporting market access and potentially lowering costs for consumers and businesses. Tariff Concession Instrument No. 0616953, issued under this Act, specifically grants tariff concessions for certain imitation jewellery, as determined by the Chief Executive Officer of Customs, effective from the date of the application. The policy objective is to ensure that the application of tariff concessions does not disadvantage existing rights or impose new liabilities, while allowing for the refund of duties paid on affected goods imported since the concession took effect.
Scope and Application
The Tariff Concession Instrument No. 0616953, as per the Customs Act 1901, applies to individuals or entities seeking a tariff concession order (TCO) for goods not specified under section 269SJ, which includes goods that cannot be subject to a TCO. The instrument specifically targets those applying for tariff concessions on certain imitation jewellery, ensuring that no substitutable goods are produced in Australia. This Act extends to the Commonwealth jurisdiction and impacts the rights and liabilities of importers and other entities involved in the importation of these goods. The instrument does not disadvantage any person or impose liabilities on anyone for actions taken before the TCO's effective date, and it benefits importers by allowing them to apply for a refund of duty. The application of this Act is further extended or restricted through subordinate instruments as necessary, ensuring its provisions are applied comprehensively and effectively within the legal framework.
Key Provisions
The main provisions of the Customs Act 1901 relevant to Tariff Concession Orders (TCOs) are found in Part XVA, particularly sections 269C, 269F, 269B, 269D, 269E, 269P, and 269S. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO regarding goods, provided the goods are not specified in section 269SJ, which lists those ineligible for a TCO. If the CEO is satisfied that the application meets the core criteria, as defined by sections 269C and 269B, they must issue a written TCO, specifying the rate of customs duty applicable to the goods (subsection 269P(3)).
The obligations imposed by the Customs Act on parties include ensuring that the goods in question are eligible for a TCO by confirming they are not listed in section 269SJ. The applicant must also meet the core criteria, which requires the CEO to verify that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. This verification process involves definitions provided by sections 269D and 269E. The CEO must then publish a notice in the Gazette inviting submissions from any interested parties (subsection 269K(1)). Upon receiving no submissions or upon concluding the review, the CEO issues the TCO.
Failure to comply with the requirements of the Customs Act concerning TCOs can result in civil and criminal consequences. The specific offences and penalties are not detailed within the explanatory statement but generally, breaches of the Customs Act can lead to fines or imprisonment, depending on the severity and intent of the breach. For example, knowingly making false statements or providing misleading information in an application could result in criminal charges, while failure to adhere to the conditions set by the TCO might lead to civil penalties such as fines. The exact penalties would be determined by the specific nature of the breach and the applicable provisions of the Customs Act.
The Tariff Concession Order No. 0616953 specifically relates to certain imitation jewellery, declaring them eligible for tariff concessions, thus making their duty rate free instead of the general 5%. This order came into effect on 8 September 2006, the date the application was lodged, and does not affect any existing rights or liabilities incurred before this date, except for allowing importers to apply for duty refunds on goods imported since the TCO's effective date. This ensures that the rights of importers are beneficially affected, as they can now import these goods without incurring the duty.