EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0714729
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.
Travelander applied for a TCO in respect of certain ute back camper on 10 September 2007.
Instrument
TCO No 0714729 was made on 23 November 2007. It declares that those certain ute back campers 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. 0714729 is taken to have come into force on 10 September 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 the framework under which Tariff Concession Orders (TCOs) may be issued by the Chief Executive Officer of Customs (CEO) to provide relief on customs duties for certain goods. This was introduced to address the need for a mechanism that allows the reduction of customs duties on goods where there is no Australian production of substitutable goods. The Tariff Concession Instrument No. 0714729, made on 23 November 2007, is an example of this mechanism in action, providing a tariff concession for certain ute back campers by applying a rate of duty of free, as opposed to the general rate of 5%. The policy objective is to encourage trade and support Australian industries by ensuring that relief is available where no domestic production exists to meet demand. The CEO is required to consult the public by publishing a notice in the Gazette and inviting submissions, though in this case, no submissions were received.
Scope and Application
The Tariff Concession Instrument No. 0714729 under the Customs Act 1901 applies to entities seeking tariff concessions on certain ute back campers by way of a Tariff Concession Order (TCO). The instrument operates within the Commonwealth jurisdiction and specifically targets goods that are the subject of an application for tariff concession. The application must meet the core criteria, which includes ensuring that no substitutable goods were produced in Australia in the ordinary course of business at the time of application. The instrument extends its application through the Customs Act 1901, which provides the legislative framework for making TCOs and sets out the criteria for their approval. The TCO does not affect the rights of any person other than the Commonwealth and does not impose any liabilities on any person, ensuring that the rights of importers are beneficially affected. The TCO was made effective from the date the application was lodged, in this case, 10 September 2007.
Key Provisions
The primary operative sections of this legislation pertain to the process and criteria for granting a Tariff Concession Order (TCO) under the Customs Act 1901. Section 269F allows an application to be made to the Chief Executive Officer (CEO) of Customs for a TCO in respect of goods. If the application is not for goods specified in section 269SJ, the CEO must assess whether the application meets the core criteria (section 269C). This involves determining if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business (sections 269D and 269E). If the CEO is satisfied that the core criteria are met, a written order (TCO) must be made under subsection 269P(3), declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The obligations and requirements imposed by this Act primarily rest on the CEO of Customs. The CEO must ensure that applications for a TCO are assessed against the criteria set out in the Act, specifically ensuring that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties if a TCO application is accepted as valid (subsection 269K(1)). The TCO itself is deemed to come into force on the day the application for the TCO was lodged (subsection 269S(1)).
Breaches of the requirements set by this legislation can lead to civil or criminal consequences. While the specific penalties are not detailed in the explanatory statement, it is implied that failure to comply with the Act's provisions could result in legal action against the parties or entities involved. For instance, if a TCO is granted improperly or if there is non-compliance with the reporting and submission processes, there could be civil liabilities for the incorrect application of customs duties or criminal penalties for fraud or misrepresentation. The exact nature and severity of these consequences would depend on the specifics of the breach and any applicable laws or regulations.