EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0713094
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.
Arnotts Biscuits Ltd applied for a TCO in respect of certain a mini laboratory on 17 August 2007.
Instrument
TCO No 0713094 was made on 29 October 2007. It declares that those certain mini laboratories 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. 0713094 is taken to have come into force on 17 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 Australian Parliament, addresses the need for a regulatory framework governing the importation of goods into Australia. It provides the legal basis for the introduction of Tariff Concession Orders (TCOs) which offer tariff concessions for certain goods under specific conditions. The explanatory statement for Tariff Concession Instrument No. 0713094, which was made on 29 October 2007, illustrates the application of this framework. In this instance, Arnotts Biscuits Ltd applied for a TCO concerning certain mini laboratories, which was approved by the Chief Executive Officer of Customs, leading to the concession of a duty-free status for these goods. The policy objective is to facilitate the importation of goods that are not produced domestically, thus supporting economic efficiency and consumer interests.
Scope and Application
The Tariff Concession Instrument No. 0713094, under Part XVA of the Customs Act 1901, applies specifically to goods that are subject to a Tariff Concession Order (TCO), with the aim of providing a lower rate of customs duty for these goods. This legislation applies to any person or entity seeking to import goods that meet the criteria for a TCO, provided these goods are not specified in section 269SJ of the Act as ineligible. The geographic scope of this legislation is nationwide, as it pertains to customs duty and the application of the Customs Act 1901 across Australia. The application of the TCO is contingent on the CEO of Customs being satisfied that no substitutable goods are produced in Australia in the ordinary course of business. The legislative framework allows for the CEO to make a TCO if certain criteria are met, impacting the duty rates for specific imported goods. The Act extends its application through subordinate instruments, such as the Customs Tariff Act 1995, which provides the schedule of duty rates applicable to goods subject to TCOs.
Key Provisions
The Customs Act 1901, specifically under Part XVA, provides the framework for Tariff Concession Orders (TCOs), as outlined in section 269F. When an individual or entity applies for a TCO, they must ensure that the goods in question are not specified in section 269SJ, which lists goods ineligible for TCOs. If the application pertains to goods not listed in section 269SJ, the Chief Executive Officer of Customs (CEO) must assess whether the application meets the core criteria stipulated in section 269C. For an application to meet these criteria, it is essential that, on the date of application, no substitutable goods are produced in Australia in the ordinary course of business, as defined by sections 269D, 269E, and 269F. If satisfied, the CEO must then issue a written TCO, declaring the applicable tariff rate as specified in Schedule 4 of the Customs Tariff Act 1995.
The obligations under the Act for parties or entities governed by it include ensuring that applications for TCOs are lodged correctly and that all relevant criteria are met. The CEO has a duty to assess each application thoroughly, considering whether substitutable goods are produced in Australia, as per the definitions provided. Furthermore, the CEO must publish a notice in the Gazette inviting submissions from interested parties, as required by subsection 269K(1). This transparency measure ensures that all stakeholders have the opportunity to voice any concerns regarding the TCO application.
In terms of offences and penalties, the Act does not explicitly detail specific criminal or civil penalties for breaches related to TCOs. However, any misuse or fraudulent application for a TCO could potentially lead to legal consequences under broader customs laws or other relevant legislation. For instance, deliberate misrepresentation or providing false information in an application could be considered an offence under the Customs Act 1901, leading to fines or imprisonment as stipulated in other sections of the Act. It is crucial for applicants to adhere strictly to the requirements and provide accurate information to avoid any legal repercussions.