EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0618147
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.
Aristocrat International applied for a TCO in respect of certain roulette tables on 02 November 2006.
Instrument
TCO No 0618147 was made on 19 January 2007. It declares that those certain roulette tables 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. 0618147 is taken to have come into force on 02 November 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 Tariff Concession Instrument No. 0618147, enacted in 2007 under the Customs Act 1901, was introduced to address the issue of providing tariff concessions for certain goods. The Customs Act 1901 established a scheme where the Chief Executive Officer of Customs could make Tariff Concession Orders (TCOs) to apply a lower rate of customs duty on specified goods. The Act required the CEO to consider applications for TCOs and determine whether they met the core criteria, which included ensuring that no substitutable goods were produced in Australia in the ordinary course of business at the time of application. The Tariff Concession Instrument No. 0618147 was made to grant Aristocrat International a concession for certain roulette tables, following an application on 02 November 2006, where the CEO was satisfied that no substitutable goods were produced in Australia. The policy objective of this measure is to support the importation of specific goods that are not domestically produced, thereby encouraging trade and benefiting importers by potentially reducing their customs duty liabilities.
Scope and Application
The Customs Act 1901, as amended, provides a framework for Tariff Concession Orders (TCOs), which offer reduced rates of customs duty on specified goods, subject to certain conditions. This legislative instrument applies to any person who seeks to import goods that meet the criteria set out in the Act, allowing them to apply for a TCO from the Chief Executive Officer of Customs. The instrument operates within the Commonwealth jurisdiction, offering relief to importers who can demonstrate that no substitutable goods are produced in Australia. Notably, the application of the TCO does not disadvantage any person by affecting their rights as they stood at the time of application registration, nor does it impose new liabilities on anyone. The TCO, once made, applies retroactively to the date of application, potentially allowing for duty refunds on goods imported since that date. The scope of the Act is extended through subordinate instruments, which further define terms such as "substitutable goods" and "ordinary course of business," ensuring that the application of TCOs is both precise and effective.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0618147, made under the Customs Act 1901, involve the establishment of a Tariff Concession Order (TCO) for certain roulette tables. Under section 269F, a person can apply to the Chief Executive Officer of Customs (CEO) for a TCO if certain conditions are met. If the CEO is satisfied that the application meets the core criteria, which include the absence of substitutable goods produced in Australia (section 269C), the CEO must make a written order (section 269P(3)) declaring that the goods in question are subject to a lower rate of customs duty as specified in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed by the Act on the parties or entities it governs include the requirement for the CEO to assess applications for TCOs according to the criteria set out in the Act. The CEO must ensure that the goods in question are not substitutable by Australian-produced goods and must make a written order if the application meets the core criteria. Additionally, under subsection 269K(1), the CEO is obligated to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. This process ensures transparency and allows for public input before the TCO is finalised.
The Act also outlines various consequences for breaches of its provisions. If a TCO is found to have been incorrectly issued, there may be civil or criminal penalties applicable depending on the nature and intent of the breach. For instance, knowingly providing false information in an application could lead to criminal charges under relevant Commonwealth laws, potentially resulting in fines or imprisonment. However, the specific penalties are not detailed within the explanatory statement, and would be determined by the relevant courts according to the severity of the offence.
Additionally, any person adversely affected by the issuance of a TCO may have grounds to lodge a complaint or seek redress through the administrative or judicial processes available under the Customs Act 1901. While the explanatory statement does not detail specific penalties for breaches, the potential for fines, imprisonment, or other administrative actions underscores the seriousness with which the Act treats compliance with its provisions.