EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0713171
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.
Victa Lawncare Pty Ltd applied for a TCO in respect of certain trimmers and/or edgers on 17 August 2007.
Instrument
TCO No 0713171 was made on 13 November 2007. It declares that those certain trimmers and/or edgers 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 0%.
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. 0713171 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, establishes a framework for managing customs duties, including provisions for Tariff Concession Orders (TCOs). The 2007 Tariff Concession Instrument No. 0713171 was introduced to address a specific need identified by Victa Lawncare Pty Ltd for tariff concessions on certain trimmers and edgers. This legislation aims to facilitate the importation of these goods at a reduced duty rate, provided no substitutable goods are produced in Australia. The Tariff Concession Order No. 0713171 was issued by the Chief Executive Officer of Customs on 13 November 2007, following an application by Victa Lawncare Pty Ltd on 17 August 2007, which reduced the customs duty rate from 5% to 0% for the specified goods. The policy objective is to provide tariff relief to importers of these goods, benefiting the importation process while ensuring no adverse effects on existing rights or liabilities.
Scope and Application
The Tariff Concession Instrument No. 0713171, made under the Customs Act 1901, applies to specific trimmers and edgers, facilitating tariff concessions for these goods. This legislation is designed to reduce the customs duty on certain imported goods to zero, provided no substitutable goods are produced in Australia at the time of the application. The scope of this Act extends to the individuals and entities involved in the importation of the specified trimmers and edgers, ensuring that the lower duty rate is applied to those goods upon their entry into Australia. The geographic reach of this Act is national, as it pertains to customs duties which are a federal matter in Australia. However, it excludes goods specified in section 269SJ of the Act, which are ineligible for tariff concessions. The application of this Act can be further extended or restricted through subordinate instruments, though the primary focus remains on ensuring tariff relief for specific imported goods.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0713171 under the Customs Act 1901 (section 269C, 269P(3), and 269SJ) establish the criteria and process for the application of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). Section 269C mandates that a TCO application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) stipulates that if the CEO is satisfied that the application meets these criteria, a written TCO must be issued. Section 269SJ sets out the goods that cannot be subject to a TCO. TCO No. 0713171 was made on 13 November 2007, declaring that certain trimmers and/or edgers are goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies, effectively reducing the duty rate from 5% to 0%.
The Act imposes several obligations and requirements on the parties it governs. Firstly, an applicant seeking a TCO must ensure their application is made in accordance with the core criteria outlined in section 269C. Specifically, the applicant must demonstrate that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. The CEO, upon receiving a valid application, must publish a notice in the Gazette inviting any interested parties to submit objections if they believe the TCO should not be granted. In this case, the CEO did not receive any submissions in response to the published notice. Once a TCO is made, the CEO must issue a written order specifying the application of the concession to the goods in question, as per section 269P(3).
Any breaches of the provisions under the Customs Act 1901 can lead to various offences, penalties, or civil and criminal consequences. For example, section 269L of the Act stipulates that any person who knowingly or recklessly makes a false or misleading statement in an application for a TCO is liable to a civil penalty. The maximum penalty for such an offence is 10,000 penalty units, which equates to a substantial financial penalty. Additionally, section 269M of the Act states that a person who contravenes any provision of a TCO is liable to a civil penalty. The maximum penalty for this offence is also 10,000 penalty units. Furthermore, section 269O of the Act makes it an offence to knowingly or recklessly make a false or misleading statement in a submission or representation in relation to a TCO application, with the same maximum penalty of 10,000 penalty units applying. These provisions underscore the importance of compliance with the Act’s requirements and the potential legal ramifications of non-compliance.