EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0707358
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.
Target Australia Pty Ltd applied for a TCO in respect of certain kitchenware and/or tableware on 16 May 2007.
Instrument
TCO No 0707358 was made on 23 July 2007. It declares that the certain kitchenware and/or tableware 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. 0707358 is taken to have come into force on 16 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. 0707358 was enacted in 2007 as part of the Customs Act 1901 to address the need for a streamlined process in granting tariff concessions for specific imported goods. This legislative instrument empowers the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that lower the customs duty rates on certain goods, provided they meet the core criteria set out in the Act. This initiative was introduced to facilitate trade by reducing the cost of imported goods, thereby benefiting importers who can apply for duty refunds on goods imported since the TCO came into effect. The instrument was developed by the Australian government through its relevant legislature, with a clear policy objective to enhance trade efficiency and economic competitiveness by offering tariff relief on specified imported goods.
Scope and Application
The Customs Act 1901, through its Tariff Concession Instrument No. 0707358, applies to any entity seeking tariff concessions on imported goods, provided that such goods are not specified in section 269SJ of the Act, which excludes certain items from being subject to a Tariff Concession Order (TCO). This legislative instrument is designed to benefit importers by potentially reducing or eliminating customs duties on specified goods, thereby encouraging the importation of these goods into Australia. The scope of the Act extends to any goods imported into the Commonwealth of Australia, subject to the criteria outlined in the Act, including the condition that no substitutable goods are produced in Australia in the ordinary course of business. The application of the Act is not restricted by geographic or jurisdictional boundaries within Australia but is limited to the types of goods that can be subject to a TCO. The Act does not specify exclusions or exemptions beyond those listed in section 269SJ, and its application can be further defined or restricted through subordinate instruments. The Tariff Concession Order No. 0707358 specifically applies to certain kitchenware and/or tableware, granting them a duty-free status as of the date the application was lodged.
Key Provisions
The Customs Act 1901, particularly under Part XVA, establishes a framework for Tariff Concession Orders (TCOs), which allow for reduced customs duties on specified goods. According to section 269F, an individual may apply to the Chief Executive Officer of Customs (CEO) for a TCO. If the CEO determines that the application pertains to goods not excluded under section 269SJ, they must assess whether the application meets the core criteria outlined in section 269C. This assessment hinges on the absence of substitutable goods being produced in Australia in the ordinary course of business at the time the application was lodged, as defined by sections 269D, 269E, and 269F. If the CEO finds that the application meets these criteria, they are obligated under section 269P(3) to issue a written order, a TCO, specifying that the goods in question are subject to a particular item in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed by the Act on the CEO include ensuring that the application for a TCO is not for goods that are explicitly excluded by section 269SJ. If the CEO is satisfied that the application meets the criteria, they must proceed to issue a TCO. Additionally, under section 269K(1), the CEO must publish a notice in the Gazette inviting any interested parties to submit their views on the application. In this instance, no submissions were received, indicating a general acceptance or lack of opposition to the proposed TCO. The TCO itself is deemed to have come into force on the day the application was lodged, as stated in section 269S(1), which in this case was 16 May 2007.
In terms of legal consequences, the Act does not impose any liabilities on individuals or entities other than the Commonwealth in relation to actions taken before the TCO was registered. However, it does provide for the rights of importers to be beneficially affected, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO. Any breach of the provisions or failure to comply with the requirements set out in the Act may result in legal actions, though the specific penalties are not detailed in the provided text. The implications of such breaches could potentially lead to civil or criminal proceedings, depending on the severity and nature of the breach.