EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0706837
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.
Pacific Hoists Pty Ltd applied for a TCO in respect of certain manually propelled trolleys on 08 May 2007.
Instrument
TCO No 0706837 was made on 23 July 2007. It declares that those certain manually propelled trolleys 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. 0706837 is taken to have come into force on 08 May 2007.
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. 0706837 was enacted in 2007 as part of the Customs Act 1901. This legislation was introduced to address the need for a scheme under which the Chief Executive Officer of Customs could make Tariff Concession Orders (TCOs) for goods, thereby reducing the rate of customs duty on specific items. The Customs Act 1901, enacted by the Australian Parliament, provides the framework for this concession scheme, which aims to encourage trade and investment by lowering tariffs on certain goods. The policy objective, as articulated in the Act, is to facilitate the import of goods that do not have domestic substitutes, thus supporting economic growth and consumer access to affordable products. This instrument particularly benefits importers by allowing them to apply for refunds of duty on goods imported since the date the TCO was taken to be in effect, without imposing any new liabilities on individuals or entities.
Scope and Application
The Customs Act 1901, through Part XVA, provides a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs, allowing for reduced customs duty on specified goods. This Act applies to any person or entity seeking to import goods into Australia, provided these goods are not listed in section 269SJ as those that cannot be subject to a TCO. The Act extends to all goods imported into Australia, ensuring that the geographic reach is national. Any person can apply for a TCO if the goods in question meet the core criteria outlined in section 269C, specifically if no substitutable goods were produced in Australia on the day the application was lodged. The Act also mandates that the CEO must publish a notice in the Gazette inviting submissions against a TCO application, although in the case of TCO No. 0706837, no such submissions were received. The TCO itself does not retroactively affect the rights of any person or impose liabilities for actions taken prior to its registration, but it does allow for the beneficial application for duty refunds by importers of the specified goods.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0706837 under the Customs Act 1901 (the Act) revolve around the creation and enforcement of Tariff Concession Orders (TCOs). Section 269F allows for the application of a TCO, while Section 269C specifies that a TCO application must meet core criteria, which is detailed in Section 269P(3). Specifically, the CEO of Customs must make a written order declaring that the goods subject to the TCO application are eligible for a prescribed item of Schedule 4 to the Customs Tariff Act 1995 if no substitutable goods were produced in Australia. Instrument TCO No. 0706837, made on 23 July 2007, declares that certain manually propelled trolleys are subject to item 50 of Schedule 4, with the duty rate reduced from 5% to free.
The Act imposes certain obligations and requirements on the parties involved. The CEO must ensure that the application for a TCO is not for goods specified in Section 269SJ, which are ineligible for a TCO. Furthermore, the CEO must consider whether the application meets the core criteria outlined in Section 269C, specifically if no substitutable goods were produced in Australia. Additionally, as per Section 269K(1), the CEO is required to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. This process ensures that all relevant stakeholders have the opportunity to voice their concerns or objections.
In terms of offences, penalties, or consequences for breach, the Act does not explicitly state any specific penalties for failing to comply with the TCO provisions. However, any non-compliance with the Act or the Regulations could potentially lead to civil or criminal consequences under other sections of the Customs Act 1901. The Customs Act 1901 provides for various penalties, including fines and imprisonment, for breaches of its provisions. For example, under Section 202 of the Act, a person who knowingly or recklessly makes a false statement in relation to an import or export matter could face penalties of up to 10,000 penalty units or imprisonment for five years, or both. Although the specific penalties for breach of a TCO are not detailed in the explanatory statement, adherence to the Act and its regulations is crucial to avoid any potential civil or criminal repercussions.