EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0617293
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.
Atlantic Pacific Foods Pty Ltd applied for a TCO in respect of certain food powders handling and mixing systems on 15 September 2006.
Instrument
TCO No 0617293 was made on 08 December 2006. It declares that those certain food powders handling and mixing systems 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. 0617293 is taken to have come into force on 15 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 was enacted by the Australian Parliament to provide a comprehensive framework for the administration of customs and excise, including the regulation of the importation and exportation of goods. The Tariff Concession Instrument No. 0617293 was introduced to address a specific gap by providing tariff concessions on certain goods, thereby facilitating trade and economic activities. This particular instrument was enacted to respond to an application by Atlantic Pacific Foods Pty Ltd for tariff concessions on food powders handling and mixing systems. The policy objective underpinning this measure is to reduce the cost of imported goods, thereby benefiting importers and potentially lowering consumer prices, while ensuring that no domestic industry is unfairly disadvantaged. This instrument came into force on the date the application was lodged, 15 September 2006, and did not impose any liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0617293, under the Customs Act 1901, applies to the goods specified in the instrument, namely certain food powders handling and mixing systems. This legislation is applicable to any entity or individual involved in the importation of these specified goods. The scope of the Act extends across the Commonwealth of Australia, as it is a federal law. The Act excludes goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a Tariff Concession Order (TCO). The instrument was made to facilitate tariff concessions for these particular goods, contingent upon the Chief Executive Officer of Customs being satisfied that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. The application process for a TCO includes a public consultation period during which objections can be raised, although no submissions were received for this specific instrument. The TCO came into force on the date the application was lodged, 15 September 2006, and it does not retroactively affect the rights or impose liabilities on persons other than the Commonwealth in relation to actions taken before the registration date.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0617293 (TCO No. 0617293) pertain to the application and grant of a Tariff Concession Order (TCO) for certain food powders handling and mixing systems under the Customs Act 1901 (section 269F). This instrument was made on 8 December 2006, and it specifies that these particular systems are to be subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, resulting in a duty rate of free, down from the general rate of 5% (section 269P(3)). The TCO came into force on the date the application was lodged, which was 15 September 2006, under subsection 269S(1) of the Act.
The Act imposes specific obligations and requirements on the parties involved, particularly the Chief Executive Officer of Customs (CEO). The CEO must ensure that the application for a TCO is valid and meets the core criteria outlined in section 269C of the Act. These criteria include verifying that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. Furthermore, subsection 269K(1) mandates the CEO to publish a notice in the Gazette, inviting any person who might oppose the TCO to submit their reasons. In this case, no submissions were received, as stated in the explanatory statement.
In terms of legal consequences, the Customs Act 1901 does not specify any offences, penalties, or civil/criminal consequences for breaches related to the issuance or misuse of a TCO. However, the Act ensures that the rights of importers are positively affected. Specifically, importers can apply for a refund of duty on goods imported since the TCO came into force, as per paragraph 126(1)(r) of the Regulations. The TCO itself does not disadvantage any person or impose liabilities on any individual for actions taken before the date of registration.