EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0710269
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.
Enviro-Fresh (Aust.) Pty Ltd applied for a TCO in respect of certain odour locking urinal sleeves on 11 July 2007.
Instrument
TCO No 0710269 was made on 21 September 2007. It declares that those certain odour locking urinal sleeves 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. 0710269 is taken to have come into force on 11 July 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. 0710269, enacted under the Customs Act 1901, was introduced to address the specific need for tariff concessions on certain goods, particularly in cases where these goods are not produced domestically in an ordinary course of business. This instrument was established to provide a streamlined process through which businesses can apply for and potentially receive lower customs duty rates on goods not produced in Australia, thereby fostering economic efficiency and competitive market conditions. The instrument was created by the Chief Executive Officer of Customs, following a valid application and after satisfying the core criteria outlined in the Act, including the absence of substitutable goods produced domestically.
The purpose of this legislative instrument is to facilitate tariff concessions that benefit importers by reducing the customs duty rates on specific goods, enhancing trade opportunities without disadvantaging existing rights or imposing new liabilities. This approach ensures that the instrument operates within the legislative framework designed to support fair and efficient trade practices while promoting domestic economic interests where applicable.
Scope and Application
The Tariff Concession Instrument No. 0710269, made under the Customs Act 1901, applies to the goods specified in the instrument, namely certain odour locking urinal sleeves, and the entity that applied for the concession, Enviro-Fresh (Aust.) Pty Ltd. This instrument, which is part of the Customs Tariff Act 1995, allows for a tariff concession order (TCO) that reduces the customs duty rate from 5% to free for these specified goods. The Act applies to all persons and entities involved in the importation of these goods, as well as any industry sectors affected by the duty rate change. The geographic reach of this Act is national, as it pertains to the Commonwealth's customs duties. The Act does not explicitly state exclusions or exemptions, but it does specify that the TCO does not disadvantage any person or impose liabilities for actions taken prior to the registration of the TCO. The application of the Act may be extended or restricted through subordinate instruments, although no such instruments are mentioned in the explanatory statement.
Key Provisions
The Tariff Concession Instrument No. 0710269, as declared under the Customs Act 1901 (section 269C), applies to the specific odour locking urinal sleeves for which Enviro-Fresh (Aust.) Pty Ltd made an application on 11 July 2007. This instrument establishes that these goods are subject to a lower rate of customs duty, which in this case is free of charge, as opposed to the general rate of 5% applicable to such goods. The instrument was made on 21 September 2007, following the Chief Executive Officer of Customs (CEO) determining that no substitutable goods were produced in Australia at the time the application was lodged, thus meeting the core criteria set out in section 269C of the Act.
The Act imposes several obligations on the parties involved. Firstly, the CEO is required to assess whether an application for a Tariff Concession Order (TCO) meets the core criteria, specifically ensuring that no substitutable goods were produced in Australia in the ordinary course of business (section 269C). Additionally, the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting submissions from any interested parties (subsection 269K(1)). Furthermore, the CEO must make a written order if satisfied that the application meets the core criteria (subsection 269P(3)).
For those breaching the provisions of the Customs Act 1901, several offences and penalties apply. Firstly, making a false statement or representation in an application for a TCO is an offence under section 269R of the Act. This offence carries a maximum penalty of 2,000 penalty units, reflecting the seriousness of providing misleading information. Additionally, any failure to comply with the notice requirements or other procedural obligations may result in administrative penalties or legal consequences as determined by the relevant authorities. These provisions ensure that the scheme operates efficiently and fairly, maintaining the integrity of the tariff concession process.