EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0712495
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.
Standard Technical Merchandise applied for a TCO in respect of certain laptop and/or notebook computer and/or music player with bags on 03 August 2007.
Instrument
TCO No 0712495 was made on 12 October 2007. It declares that those certain laptop and/or notebook computer and/or music player with bags 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. 0712495 is taken to have come into force on 03 August 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 Customs Act 1901, enacted by the Commonwealth Parliament, establishes a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislative instrument addresses the need to facilitate the importation of goods that are not produced in Australia by reducing or eliminating customs duty for these goods, thereby promoting economic efficiency and consumer access. The Tariff Concession Instrument No. 0712495, introduced on 12 October 2007, pertains to specific laptop and/or notebook computer and/or music player bags, for which a zero rate of duty is applied as no substitutable goods are produced domestically. This instrument was made following an application by Standard Technical Merchandise and became effective on the date of application, 3 August 2007, without any adverse impact on pre-existing rights or liabilities of persons other than the Commonwealth. The objective of this TCO is to ensure that importers of the specified goods can benefit from reduced duty rates, potentially leading to cost savings and increased market competitiveness.
Scope and Application
The Customs Act 1901, specifically under Part XVA, establishes a framework for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These TCOs apply to goods for which a lower rate of customs duty is prescribed. Any person may apply to the CEO for a TCO, provided that the goods in question are not specified in section 269SJ of the Act, which outlines goods that cannot be subject to a TCO. The CEO must assess whether the application meets the core criteria, which include the condition that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. This determination is made under sections 269C, 269D, and 269E of the Act, which define key terms such as "goods produced in Australia", "ordinary course of business", and "substitutable goods". If the application satisfies these criteria, the CEO issues a TCO, as exemplified by TCO No. 0712495, which applies a zero rate of duty to certain laptop and/or notebook computer and/or music player with bags. This TCO came into force on 3 August 2007, the date the application was lodged, and benefits importers by potentially allowing them to apply for duty refunds on these goods imported since the TCO's effective date.
Key Provisions
The Customs Act 1901, under Part XVA, establishes a framework for Tariff Concession Orders (TCOs) to be issued by the Chief Executive Officer of Customs (CEO) (section 269F). When an application for a TCO is submitted, the CEO must determine if the goods specified are not prohibited by section 269SJ and if the application meets the core criteria (section 269C). If these conditions are met, the CEO is required to issue a written TCO (subsection 269P(3)). For instance, Standard Technical Merchandise applied for a TCO on 03 August 2007 for certain laptop and/or notebook computers and/or music players with bags, which was subsequently issued as TCO No. 0712495 on 12 October 2007.
The Act outlines specific obligations for the CEO when handling TCO applications. According to section 269K(1), once an application is accepted, the CEO must promptly publish a notice in the Gazette inviting any interested parties to submit reasons why the TCO should not proceed. In this case, no submissions were received, and the TCO was issued as requested. Furthermore, under subsection 269S(1), a TCO is considered to come into effect on the date the application was lodged. The TCO does not retroactively affect the rights of any person, except for the Commonwealth, and does not impose any new liabilities on individuals or entities (subsection 269S(2)).
The Act also specifies the consequences of non-compliance and breaches. However, the explanatory statement does not explicitly detail any specific offences or penalties associated with breaches of the TCO provisions. It is essential to consult the broader legal context and relevant sections of the Customs Act 1901 and related regulations to understand the full scope of penalties that might apply in the event of a breach. Importers of the affected goods can apply for a refund of duty under paragraph 126(1)(r) of the Regulations for goods imported since the TCO's effective date.