EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0710735
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.
Arrk Australia & New Zealand Pty Ltd applied for a TCO in respect of certain three dimensional printers on 09 July 2007.
Instrument
TCO No 0710735 was made on 02 October 2007. It declares that those certain three dimensional printers 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. 0710735 is taken to have come into force on 09 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. 0710735, enacted in 2007 under the Customs Act 1901, was introduced to provide tariff concessions for specific goods, thereby addressing a gap in the duty-free treatment of certain imported items. The Customs Act 1901 allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs), which reduce the rate of customs duty on specified goods if certain criteria are met. In this case, Arrr Australia & New Zealand Pty Ltd applied for a TCO for certain three-dimensional printers, and the CEO granted the concession because no substitutable goods were produced in Australia at the time. The instrument, which came into effect on the date of the application, ensures that importers can benefit from the reduced duty rate, aligning with the policy objective of supporting Australian industry by lowering import costs for specific goods.
Scope and Application
The Tariff Concession Instrument No. 0710735 under the Customs Act 1901 applies to specific three-dimensional printers, with the purpose of providing a lower rate of customs duty for these goods. This concession is available to entities that import these printers into Australia, thereby benefiting their financial obligations by eliminating duty costs. The instrument was enacted on 2 October 2007 and is applicable across the Commonwealth of Australia, as it falls under federal customs regulations. The Act does not specify any exclusions or exemptions for this particular instrument, but it does adhere to the exclusions outlined in section 269SJ of the Customs Act 1901, which details goods that cannot be subject to a Tariff Concession Order. The instrument’s application is further governed by subordinate instruments, such as the Customs Tariff Act 1995 and associated regulations, which determine the specific duty rates and refund processes for importers.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, 269P(3) and 269SJ of the Customs Act 1901. Section 269F allows an application to be made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). Section 269C sets out the criteria for a TCO, specifically that no substitutable goods must be produced in Australia at the time the application is made. If the CEO is satisfied that the application meets the core criteria, they must make a TCO, as stipulated in section 269P(3). Section 269SJ lists goods that cannot be subject to a TCO. The Tariff Concession Instrument No. 0710735 specifically addresses the application by Aark Australia & New Zealand Pty Ltd for a TCO in respect of certain three-dimensional printers, declaring these printers to be subject to a TCO.
The obligations imposed by the Customs Act 1901 on parties applying for a TCO include ensuring that their application is made in accordance with the Act's requirements. The CEO must also ensure that the application is not in respect of goods specified in section 269SJ, which excludes certain goods from eligibility for a TCO. Furthermore, the CEO must verify that the application meets the core criteria set out in section 269C, particularly confirming that no substitutable goods are being produced in Australia at the time of the application. The CEO is also required to publish a notice in the Gazette inviting submissions from any interested parties who may oppose the TCO, as per section 269K(1).
Should any party breach the provisions of the Customs Act 1901, particularly by providing false information in an application for a TCO, they may face legal consequences. While the legislation does not explicitly outline specific penalties for such breaches, it is likely that penalties for misleading or deceptive conduct under the Australian Consumer Law could apply. These penalties include substantial fines and, in severe cases, imprisonment. The exact penalties would depend on the specific nature of the breach and any relevant case law or statutory provisions.
The Tariff Concession Instrument No. 0710735 does not impose any liabilities on any person other than the Commonwealth. It specifically states that the rights of persons other than the Commonwealth are not affected adversely by the TCO, and no liabilities are imposed in respect of actions taken before the TCO's registration date. The instrument benefits importers by allowing them to apply for a refund of duty on goods imported since the TCO's effective date, as outlined in paragraph 126(1)(r) of the Regulations. This ensures that importers who have already paid duty on eligible goods can seek reimbursement, aligning with the intent to provide tariff relief without retrospective effect.