EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0718940
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.
San Marino Smallgoods applied for a TCO in respect of certain meat salting machines on 8 November 2007.
Instrument
TCO No 0718940 was made on 29 January 2008. It declares that those certain meat salting machines 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. 0718940 is taken to have come into force on 8 November 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 was enacted by the Australian Parliament and is designed to regulate the importation and exportation of goods. One of the mechanisms under this Act is the establishment of Tariff Concession Orders (TCOs) to provide relief on customs duties for certain goods. The explanatory statement for Instrument No. 0718940, made under this Act, concerns the application of Tariff Concession Order No. 0718940 by San Marino Smallgoods for certain meat salting machines. The policy objective behind this TCO is to ensure that the importation of specific goods, such as the meat salting machines, is facilitated by reducing the customs duty to zero, provided no substitutable goods are produced in Australia. The CEO of Customs was satisfied that the application met the core criteria, leading to the issuance of the TCO which took effect from 8 November 2007. This instrument ensures that the rights of importers are positively affected while not imposing any new liabilities on persons other than the Commonwealth.
Scope and Application
The Customs Act 1901, specifically under Part XVA, facilitates the creation of Tariff Concession Orders (TCO) by the Chief Executive Officer of Customs, enabling a lower rate of customs duty on certain goods. This legislative framework applies to any individual or entity that meets the criteria for applying for such tariff concessions, particularly those involved in the import or export of specified goods. The scope of the Act extends across the Commonwealth of Australia, impacting trade and customs duties on a national level. However, it excludes goods listed in section 269SJ, which cannot be subject to a TCO. The application of a TCO is contingent upon the CEO determining that no substitutable goods are produced in Australia at the time of application, as outlined in sections 269C and 269D. This Act's application may be further defined or extended through subordinate instruments, which could provide additional details or conditions under which the TCOs can be applied.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0718940 under the Customs Act 1901 include sections 269C, 269F, and 269P, which collectively govern the process and criteria for the making of Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the application does not pertain to goods specified in section 269SJ, which outlines those goods that cannot be subject to a TCO, the CEO must then determine whether the application meets the core criteria set out in section 269C. If the CEO is satisfied that the application meets these criteria, a written order is issued as a TCO (section 269P(3)). This order declares that the specified goods are subject to a prescribed rate of duty under Schedule 4 of the Customs Tariff Act 1995.
The Act imposes specific obligations on both the applicant and the CEO. The applicant must ensure that the goods for which the TCO is sought are not specified in section 269SJ and that the application is made on a day when no substitutable goods are produced in Australia in the ordinary course of business, as defined by sections 269D and 269E. The CEO, upon receiving a valid application, must publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made (subsection 269K(1)). If no submissions are received, the CEO is required to make a written order if the application meets the core criteria. The TCO in this instance was made on 29 January 2008 for certain meat salting machines, which are now subject to a duty rate of free instead of the general rate of 5%.
Breaches of the conditions outlined in the Customs Act 1901 can lead to various penalties and consequences. For instance, providing false or misleading information in an application for a TCO could result in criminal charges, with penalties including fines and imprisonment. Specifically, section 283 of the Act provides for a penalty of up to five years imprisonment or a fine of up to 5,000 penalty units, or both, for offences involving false statements or documents. Additionally, civil penalties may apply for non-compliance with the Act's requirements, although the specific details of these penalties are not explicitly outlined in the text. The Act ensures that the rights of persons other than the Commonwealth are not adversely affected by the issuance of a TCO, and it does not impose any new liabilities on such persons.